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P. v. Rivas

P. v. Rivas
01/18/12

P




P. v. Rivas




Filed 4/15/11 P. v. Rivas CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN JOSEPH RIVAS,

Defendant and Appellant.



E050602

(Super.Ct.No. RIF136896)

OPINION


APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
On April 8, 2009, an amended information charged defendant and appellant Steven Joseph Rivas (defendant) with aggravated sexual assault of a child under 14 years of age in violation of Penal Code[1] section 269, subdivision (a)(5) (count 1); two counts of lewd and lascivious acts on a child under the age of 14 years in violation of section 288, subdivision (b)(1) (counts 2, 3); and four counts of lewd and lascivious acts on a child under the age of 16 years in violation of section 288, subdivision (c)(1) (counts 4, 5, 6, 7). At his arraignment on the same date, defendant pled not guilty to all the charges.
On November 30, 2009, a jury trial commenced. On December 8, 2009, on motion by defendant, the trial court amended count 1 to allege a lewd and lascivious act in violation of section 288, subdivision (a), not section 269, subdivision (a)(5). On December 11, 2009, the jury returned guilty verdicts as to all seven counts.
On April 9, 2010, the trial court denied probation and sentenced defendant to a total term of 18 years in state prison: middle term of six years for count 1; consecutive middle terms of six years each for counts 2 and 3; and concurrent middle terms of two years each for counts 4 through 7.
Moreover, the trial court imposed a restitution fine in the amount of $2,000, and imposed a suspended parole revocation fine in an equal amount under section 1202.45. The court also imposed a $2,000 fine under section 290.3; a conviction assessment fee of $30 per count of conviction; a $210 court security fee under section 1465.8, subdivision (a)(1); and a $367.74 victim restitution fee under section 1202.4, subdivision (f), and reserved jurisdiction as to further victim restitution. The court further ordered defendant to comply with the DNA and fingerprint requirements under section 296. The court awarded defendant 120 days of actual custody credit plus 18 days of local conduct credits under section 2933.1.
On April 9, 2010, defendant filed a timely notice of appeal.
II
STATEMENT OF FACTS
A. Prosecution Case
1. Testimony of Jane Doe and Other Witnesses
Jane Doe was 22 years old at the time of trial. She first met defendant when she was three or four years old; he was dating Doe’s older sister, R. About age nine, Doe began to visit R. and defendant in their home in Moreno Valley. Defendant became a father figure to Doe. Doe stayed with R. and defendant at their home during breaks from school. In 2001, rooms were built in the garage for Doe and her older brother, S.B.
a. Count 1 – Section 288, Subdivision (a)
In 1998, when Doe was 11 years old, she was staying with R. and defendant. Defendant asked Doe to lie down on the couch with him as they watched television. Defendant’s daughter, was in the same room watching television with them. As they were lying together, defendant pulled a blanket over them. For four or five minutes, defendant put his hand in Doe’s pants and under her underwear. Defendant rubbed Doe’s vagina with his finger. Doe was not sure what defendant had been doing or whether it was wrong.
b. Count 2 – Section 288, Subdivision (b)(1)
On another occasion when Doe was 11 years old, defendant came into her bedroom while she was sleeping on the floor. Defendant’s daughter was asleep in the same room. Defendant lied down next to Doe and started to rub her vaginal area through her pajamas. Defendant also grabbed Doe’s hand and made her rub his erect penis through his shorts. Defendant then had Doe stand up. He picked her up and wrapped her legs and arms around his waist and neck. Defendant held Doe for a minute or two, rubbing his penis on her thigh.
After the incident, Doe did not know what to do and was unsure whether she should tell anyone. She explained that she did not tell anyone because defendant was the authority figure at home and he was the only father figure Doe had. After the incident, Doe was angry at defendant and felt uncomfortable around him.
c. Count 3 – Section 288, Subdivision (b)(1)
In 1999, after Doe turned 12, she continued to stay with defendant and R. during school breaks. One morning, while Doe watched television with the other children in the living room, defendant called her into his bedroom and shut the door. He told Doe to lie on the bed and pushed her gently down onto the bed. Defendant lay down next to Doe, lifted up her skirt, massaged her breasts, and sucked on her nipples. Defendant tried to pull Doe’s pants down. Defendant told Doe it was okay for him to do the things he was doing, but said that it would be wrong for anyone else. Doe understood this to mean that it was appropriate for defendant since he was the father figure in her life.
Doe did not push defendant away because she was scared. Defendant stopped when one of his children knocked at the bedroom door. When defendant got up to answer the door, Doe pulled her pants up and left the room. Doe did not report the incident because she was unaware that defendant’s actions were wrong and because she thought that no one would believe her. Defendant had also told Doe that the children in defendant’s family would lose their father if she reported him. After that incident, Doe stopped visiting defendant and R. during school breaks.
d. Counts 4, 5, 6 – Section 288, Subdivision (c)(1)
When Doe was approximately 15 years old, she moved in with R. and defendant because Doe’s mother had an aneurysm. Doe recalled that during the summer of 2001, when she was 15 years old and in high school, she and defendant were supposed to go shopping. Instead, defendant parked the car on a dirt road and smoked marijuana with Doe. On returning home, defendant entered Doe’s bedroom. Sitting on the bed next to Doe, defendant started to kiss Doe and touch her breasts over her clothes. Defendant moved Doe’s hand to his erect penis. Defendant asked Doe if she wanted to have sex with him. Doe said yes—she was afraid of being kicked out of his house without anywhere to go. After Doe told defendant she wanted to have sex with him, he stopped and left the room.
A few days later, defendant entered Doe’s bedroom while she was sleeping. She was wearing pajamas. Wearing no clothes, defendant got into bed with Doe. Defendant kissed Doe and put his hand under her shirt. After pulling off Doe’s pajamas and underwear, defendant performed oral sex on Doe.
Doe did not stop defendant because she was afraid and too scared. After oral sex, defendant had intercourse with Doe and ejaculated inside Doe. Although she cried, Doe did not tell defendant to stop because she was afraid and did not want to be kicked out of the house.
After this incident, defendant had intercourse with Doe about three or four times each week at about the same time at night. Doe conceded that defendant never forced her to have sex, and she never asked him to stop. Defendant orally copulated Doe every time they had intercourse.
Doe told defendant to stop having sex with her just before she turned 18 years old. Doe turned 18 in February of 2005. Before then, she was too afraid to tell anyone. Defendant, however, continued to come into Doe’s room, but less frequently. Defendant finally stopped coming to Doe’s room and having sex with her after she told him that she wanted to move out. Doe moved out on June 23, 2005, about three days after she graduated from high school.
e. Count 7 – Section 288, Subdivision (c)(1)
On one occasion in 2003, defendant had intercourse with Doe during the day. On that occasion, S.B. overheard the incident. Doe told the jury that S.B. overheard defendant because he was moaning; defendant was usually quiet.
S.B. reported the incident at school. Doe was interviewed by the police and child protective services (CPS). Defendant told her to tell the police that everything S.B. reported was a lie and that S.B. was upset because he wanted Doe to move out of the house. Defendant also told Doe to tell the police that the moaning S.B. heard was her radio. Doe told the police what defendant wanted her to say. Doe also lied to CPS. She was afraid and did not want to be removed from the house.
At the time of trial, S.B. was 24 years old and serving in the United States Army. Defendant was approximately 10 years older than S.B. Doe and S.B. are siblings; they have the same biological parents. When S.B. was about 12 or 13 years old, he started to live with R. and defendant in their home. S.B. recalled that Doe also stayed with R. and defendant on occasion. When Doe was about 14 or 15 years old, she moved in to the house full time. Although S.B. and Doe initially shared rooms with other children, the garage was later divided into two separate rooms for S.B. and Doe. The wall separating the two rooms was not insulated so conversations in one room could be heard in the other.
About a month after Doe moved into her room, S.B. heard his sister moaning in her room. He was a junior in high school. S.B. interpreted the moaning to be sexual in nature. After the moaning stopped, S.B. heard defendant’s voice in Doe’s room saying, “I started today off with a bang.” Right after defendant made that comment, he entered S.B.’s room. Defendant asked S.B. whether he was working that day. S.B. stated that he was going to work later. The following day, S.B. reported the incident to his high school counselor.
A day or two later, S.B. recanted the incident. He told his counselor that he lied because he had been mad at defendant and R. S.B. did not want R.’s children removed from the home. That night or the next day, S.B. moved out of defendant’s home.
2. Doe’s Pregnancies and Abortions
Doe became pregnant in 2003 from her relationship with defendant; she was 16 years old. Defendant never used a condom while having sex with Doe. Defendant bought Doe a home pregnancy test; the result was positive for pregnancy. Defendant told Doe to make an appointment at a clinic for a free pregnancy test. After Doe made an appointment with a family planning clinic in San Bernardino, a woman named Betty, a friend of defendant, drove Doe to the clinic. Defendant drove Doe to Betty’s house.
Doe took another pregnancy test at the clinic. Doe used the name S. Alvarez and altered her birth date. Defendant told Doe to use a false name and to change her birth date. When the pregnancy test proved positive, Doe made an appointment, at defendant’s instructions, to have an abortion the same day. Defendant gave Doe $360 to pay for the abortion. However, because Doe was too far along in her pregnancy for a simple abortion procedure, she was told she needed a more costly abortion procedure. The clinic, therefore, gave her a refund check for $360. Doe signed the check over to Betty who gave her $360 in cash. Two days later, Betty drove Doe back to the clinic for a more expensive abortion procedure. Betty waited for Doe. After Doe rested for a few hours at Betty’s house, she drove Doe home.
After Doe’s first abortion, the clinic personnel informed her to refrain from sex for about six to eight weeks. She told defendant. Therefore, defendant did not have sex with Doe during that time period. Doe was still 16 years old at this time. Eventually, defendant resumed having sex with Doe approximately three to four times each week. He continued to perform oral sex on her before intercourse. Doe never told defendant to stop or that she did not want to have sex with him. She was too afraid and scared.
In 2004, Doe became pregnant again by defendant. On July 15, 2004, Doe had another abortion at a clinic in Palm Desert. Defendant drove her to the clinic and then home. Defendant paid for Doe’s abortion. On this occasion, Doe used the name S. Florez. Defendant resumed sexual intercourse with Doe after about six to eight weeks.
Later in 2004, Doe became pregnant for a third time by defendant. Defendant told Doe to make another appointment for an abortion. Doe made an appointment at the same clinic in San Bernardino where she had her first abortion. Defendant gave Doe money for the abortion and drove her to and from the clinic. Defendant resumed sexual relations with Doe again after six to eight weeks.
In July of 2004, Mercy Cole worked at a medical clinic in Palm Desert. She entered the name of every patient in a daily log book. In the log book for July 15, 2004, she showed that the doctor performed an abortion on S. Florez. Cole did not know S. Florez and could not recall what she looked like.
In February of 2007, Riverside County Sheriff’s Detective John Lenton was assigned to investigate this case. He spoke with Doe who provided information about a person named Betty. Lenton located Betty Davey. When he interviewed Davey on February 7, 2007, he recorded the conversation, which was played for the jury.
During the interview, Davey acknowledged that she knew defendant and that she helped a young woman at defendant’s request. She drove the young woman to and from an abortion clinic in San Bernardino. Davey assumed that the young woman and defendant had a relationship. Davey recalled that on their initial trip to the clinic, the young woman was given a refund check and they had to return with more money to pay for a more costly abortion procedure. Davey stated that she waited for the young woman at the clinic, drove her to Davey’s house, and watched her for a couple of hours before she left.
3. Doe’s Complaint to Star Moreno
In 2006, about a year after Doe moved out, she told her friend, Star Moreno, about what had occurred while Doe was living in defendant’s home. Doe told Moreno that when Doe was about 15 years old, defendant began to molest her and repeatedly had sexual intercourse with her. Doe told Moreno about two pregnancies by defendant and the abortions he arranged.
According to Moreno, Doe was very emotional when she spoke about the molestations. Although Doe was reluctant to tell the authorities, Moreno advised Doe to call the police. The next day, Moreno called the police on Doe’s behalf and arranged for Doe to meet with the police. Doe agreed to inform the police because she did not want the same thing to happen to anyone else. At the police station, Doe was interviewed by Detective Lenton.
4. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
Dr. Jody Ward, a clinical and forensic psychologist, testified as an expert witness on the Child Sexual Abuse Accommodation Syndrome (CSAAS). According to Dr. Ward, CSAAS involves a pattern of behaviors commonly exhibited by sexually abused children. There are five hallmarks of CSAAS: secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction. According to Dr. Ward, it is very common for sexually abused children not to report abuse. In an ongoing sexually abusive relationship, there are many factors within the family and in the child’s own psyche that make it difficult for the child to report abuse, take action to stop the abuse, or get out of an abusive relationship as it occurs. Although not all five hallmarks are present in every case, secrecy and helplessness are present in all cases of child sexual abuse. Moreover, because of family dynamics, it is very common for other family members, not involved in the sexual abuse, to call or consider the victim a liar.
In Dr. Ward’s opinion, it is very common for abused children to continue to put themselves in or remain in situations where they continue to be abused, especially if the perpetrator were in a position of authority or provided for the victim on a daily basis. Moreover, it is very common for an abused victim not to disclose the abuse, especially if told that other family members would suffer. In adulthood, however it is not uncommon for former victims of child abuse to report the abuse. These victims, however, tend to reveal the abuse to a friend or somebody close, not to law enforcement.
Dr. Ward stated that she never met or interviewed Doe. She acknowledged that about 2 to 6 percent of alleged sexual abuse involved false accusations. She stated that the risk of false allegations is greater with older children. The false allegations occur in response to anger over perceived injustice, over feelings of abandonment, out of vindictiveness or from a desire for revenge or rage. Based on studies however, in Dr. Ward’s opinion, false accusations are very rare.
B. Defense Case
1. Testimony of Family Members
Several of defendant’s children testified at trial. Defendant’s oldest son (Son 1) was 17 years old and a senior in high school at the time of trial. He had good grades, participated in track and field at school, and intended to attend college. Son 1 told the jury that his father was strict at home; he set rules and regulations for all of the children and required that the children do chores. Son 1 also stated that defendant required the children to have good grades or face restrictions.
Son 1 recalled that both S.B. and Doe came to live in their home. They participated as members of the family, and had chores and assignments. On one occasion, S.B. told Son 1 that he heard voices in his head and saw glowing eyes in his room. According to Son 1, S.B. resented the chores they were assigned. Moreover, Doe did not like being told what to do. She was very outspoken. When she did not like something, she let everybody know. Doe was frequently punished with loss of privileges.
During the time Doe was living in their house, Son 1 never saw defendant go into the master bedroom with Doe and lock the door, or come out of the master bedroom together. He never saw defendant act inappropriately with Doe.
Son 1 recalled that defendant worked for Wal-Mart. After an injury in 2004, defendant did not work.
Defendant’s oldest daughter (Daughter 1) was 15 years old at the time of trial. Daughter 1 considered Doe as her sister. All of the children, including S.B. and Doe, had to follow the rules and regulations of the house. When Doe disobeyed the rules, she was grounded. Doe did not like the house rules.
Both Daughter 1 and Doe kept journals. Because of their close relationship, Daughter 1 would have known whether Doe was keeping secrets or did not want to talk about certain things. During the time Doe lived with the family, Daughter 1 would have known if something had been bothering Doe. Daughter 1 never saw defendant and Doe go into his bedroom and lock the door.
Defendant’s younger son (Son 2) was a junior in high school. He had good grades, and played football and baseball. He remembered when S.B. and Doe came to live in the family home. Doe stayed in their home until she was 18 years old. According to Son 2, Doe had a bad attitude about doing chores. He never saw defendant act inappropriately with Doe.
Defendant’s younger sister (Defendant’s Sister) visited defendant’s home nearly every weekend in 2002. She and Doe got along very well and were close. For Defendant’s Sister, Doe was like a little sister she never had. According to Defendant’s Sister, Doe did not like the rules and regulations, or the chores assigned to her in defendant’s home. Doe talked back and used foul language. During the years that Defendant’s Sister visited the home, Doe never complained to her about improper advances that defendant may have made. Defendant’s Sister never saw defendant act inappropriately toward Doe. Defendant’s Sister recalled speaking to Doe after CPS interviewed her after S.B.’s report to the counselor. Doe never mentioned that defendant told her not to say anything during the interview with CPS.
R.’s mother (Mother) testified. Both S.B. and Doe were also her children. Mother recalled that S.B. and Doe fought with each other. Doe had a very strong temper as a child. According to Mother, S.B. was happy when he left home to live with defendant and R. In 2001, when Doe was about 14 years old, she went to live with defendant and R. According to Mother, Doe was not an honest person; she lied most of the time. Mother also saw Doe using marijuana.
Mother admitted that she called Doe during the trial. She told Doe not to testify because she was alienating and ruining the family. Mother told Doe to drop the case because she did not want her grandchildren growing up without a father.
2. Testimony of Friends
Mark Demers testified. At the time of trial, he worked as a recruiting manager. Formerly, Demers was a department manager for Wal-Mart. In 1996, he met defendant when he came to work in Demers’s department. After Demers was promoted, he left the store where he and defendant had worked together. Demers, however, continued his friendship with defendant. Over a 10-year period, Demers frequently spoke with and visited defendant at his home.
Demers was also acquainted with defendant’s children, S.B. and Doe. Demers knew that defendant had built extra rooms in the garage for S.B. and Doe. Demers was aware that defendant was a disciplinarian with his children and provided a very structured environment for them. Demers observed that Doe was displeased about doing chores. Doe was very outspoken, had an “attitude,” and appeared troubled when she first came to live in defendant’s home. Defendant helped Doe get back on track and do well in school.
Robert McCulley was the administrative pastor at the Calvary Chapel in San Jacinto. Formerly, Pastor McCulley was an occupational safety and health specialist. He also served for 20 years in the United States Marine Corps. Pastor McCulley became acquainted with defendant and his family after they started to attend his church. He was not aware of the charges involved in this case. He saw defendant several times each week. In the pastor’s opinion, defendant had a good reputation. Defendant did not have a reputation for violence or as a violent person. According to the pastor, defendant was a person of character.
Roy Karlinsky was a self-employed scrap dealer. He met defendant in church about two years before trial. He considered defendant a very close friend. He saw defendant several times each week at church functions. He was also acquainted with defendant’s wife and their children. In his opinion, defendant was a compassionate and nonviolent person. Having observed defendant with his family, Karlinsky formed the opinion that defendant was a good father, served as a fabulous role model, and had a deep love for the children. The facts of this case were out of character and did not match the defendant he knew.
III
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster
J.


We concur:

/s/ Hollenhorst
Acting P.J.
/s/ Richli
J.



[1] All statutory references are to the Penal Code unless otherwise specified.




Description On April 8, 2009, an amended information charged defendant and appellant Steven Joseph Rivas (defendant) with aggravated sexual assault of a child under 14 years of age in violation of Penal Code[1] section 269, subdivision (a)(5) (count 1); two counts of lewd and lascivious acts on a child under the age of 14 years in violation of section 288, subdivision (b)(1) (counts 2, 3); and four counts of lewd and lascivious acts on a child under the age of 16 years in violation of section 288, subdivision (c)(1) (counts 4, 5, 6, 7). At his arraignment on the same date, defendant pled not guilty to all the charges.
On November 30, 2009, a jury trial commenced. On December 8, 2009, on motion by defendant, the trial court amended count 1 to allege a lewd and lascivious act in violation of section 288, subdivision (a), not section 269, subdivision (a)(5). On December 11, 2009, the jury returned guilty verdicts as to all seven counts.
On April 9, 2010, the trial court denied probation and sentenced defendant to a total term of 18 years in state prison: middle term of six years for count 1; consecutive middle terms of six years each for counts 2 and 3; and concurrent middle terms of two years each for counts 4 through 7.
Moreover, the trial court imposed a restitution fine in the amount of $2,000, and imposed a suspended parole revocation fine in an equal amount under section 1202.45. The court also imposed a $2,000 fine under section 290.3; a conviction assessment fee of $30 per count of conviction; a $210 court security fee under section 1465.8, subdivision (a)(1); and a $367.74 victim restitution fee under section 1202.4, subdivision (f), and reserved jurisdiction as to further victim restitution. The court further ordered defendant to comply with the DNA and fingerprint requirements under section 296. The court awarded defendant 120 days of actual custody credit plus 18 days of local conduct credits under section 2933.1.
On April 9, 2010, defendant filed a timely notice of appeal.
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