P. v. Zavala

Filed 3/15/06 P. v. Zavala CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge. Affirmed.

Wallin & Klarich, Michael J. Schensul and Robert C. Kasenow II for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

An information charged Edgar Zavala with six counts of committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a)). Counts 1 through 4 involved victim Karina, and counts 5 and 6 involved victim J. The information also alleged Zavala engaged in substantial sexual conduct with the victims within the meaning of Penal Code section 1203.066, subdivision (a)(8), and alleged, as to counts 2, 3, and 5 that Zavala committed a sexual offense specified in Penal Code section 667.61, subdivision (c) against more than one victim within the meaning of section 667.61, subdivisions (b), (c)(7), and (e)(5).

The jury convicted Zavala on counts 1 through 5 and found true all of the special circumstance allegations. As to count 6, the jury convicted Zavala of the lesser included offense of attempted lewd act on a child under 14 years of age. Zavala was sentenced to five consecutive terms of 15 years to life on counts 1 through 5. The court struck the sentence on count 6.

Zavala's appeal challenges the convictions on counts 5 and 6 only. He contends the trial court erred by permitting a police officer to testify about statements made by the victim, J., during a police investigation. The officer's testimony, Zavala argues, was not admissible under the prior inconsistent statement exception to the hearsay rule because: (1) J., who testified at trial, was not qualified to be a witness; (2) J. was not legally sworn as a witness (for this reason, Zavala also contends her testimony should have been stricken); and (3) J.'s statements made to the police officer were not inconsistent with J.'s trial testimony.

We conclude the police officer's testimony as to J.'s statements made to him was admissible because: (1) J. was qualified to be a witness; (2) defense counsel waived any challenge to J.'s unsworn testimony, but Zavala suffered no prejudice because J. was a reliable witness; and (3) J.'s testimony that she did not want to answer certain questions created an inconsistency with her statements made to the police officer. We therefore affirm.

Facts

1. Counts 1 Through 4

Karina was born in 1982 and was 22 years of age at the time of trial. In about 1993, her mother was dating Zavala. He eventually moved into the apartment where Karina, her mother, and her brothers lived.

The evidence showed Zavala molested Karina on several occasions. When Karina was about 12 years of age, she woke up one morning and one of her breasts was exposed. Zavala was standing in front of her bed and was looking at her. On another occasion, Zavala got into bed next to Karina, touched her breasts underneath her blouse, and tried to force her to kiss him. Zavala threatened to kill Karina if she told her mother. On yet another occasion, Zavala inserted his finger in Karina's vagina after making her step into the shower with him. Another time, while Karina was lying on her bed watching television, Zavala lay down next to her, fondled her breasts, and tried to touch her vagina. On yet another occasion, Karina had taken medication and had fallen asleep in her bed. When she woke up, Zavala's fingers were inside her vagina.

2. Counts 5 and 6

a. B. A.'s Testimony

B. A. married Zavala and had three children by him. J., born in 1999, was one of them.

B.A. testified that in January 2004, she and the three children were living in Colton, California. Zavala was not living with them, but he would sometimes visit their home. Sometime in January 2004, B.A. returned home and found Zavala and J. in the bedroom, under a blanket, watching television. B.A. removed the blanket and saw part of J.'s skirt raised about halfway up. Neither Zavala nor J. said anything.

In early May 2004, B.A. saw Zavala sitting in his truck with J. on his lap. B.A. testified she saw Zavala â€