P. v. Dominguez

Filed 9/28/07 P. v. Dominguez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Francisco Dominguez appeals following his conviction by a jury of seven counts of lewd acts on a child under 14 and two counts of oral copulation with a child under 14. We affirm.

Procedural Background

On October 14, 2004, an amended information was filed in Contra Costa County Superior Court accusing defendant of lewd acts on a child under 14 (Penal Code, 288, subd. (a);[1] counts one and four through nine) and oral copulation with a child under 14 ( 288a, subd. (c)(1); counts two and three).

Defendant represented himself at trial. The jury convicted him on all counts. The trial court sentenced defendant to the aggravated base term of eight years on count one and to consecutive two year terms on the remaining eight counts, for a total prison term of 24 years.

Factual Background

Laura S. (Mother) is the victim Jane Does mother and defendants sister. In 2001 and 2002, defendant lived in Mothers home for about a year and a half, although he was often absent traveling. During that period defendant often babysat Doe, around 10 times. In 2003, Doe told Mother that defendant had touched her and pointed to her vagina. Mother contacted the police.

Doe was interviewed at the Martinez Childrens Interview Center, and a videotape of the interview was played for the jury. Doe told the interviewer that defendant molested her on five separate occasions. On the first occasion, Doe was home sick and defendant was taking care of her. Doe was about four years old. She was in her mothers bed; defendant entered the room, opened his zipper, and put his private in her private. He also licked her private.

The second time, Doe was again home sick and defendant was home with her. Defendant got naked and licked her private. Doe was about five at the time. The third time, defendant again put his private inside her private. On that same day, defendant had Doe hold his private while he urinated. The fourth time, Doe had been practicing ballet in the hallway; defendant took her into her mothers room, licked her private, inserted his finger into her private, and had sex with her. The fifth occasion occurred at her uncles house. Although Doe resisted, defendant had sex with her. There were no further incidents.

Doe, who was almost ten years old at the time, also testified at trial. She testified to a range of lewd acts committed by defendant similar to those detailed in the videotaped interview. She admitted that things were fresher in her mind when she was interviewed at the childrens interview center. At trial, Doe testified before the videotape was played for the jury.

Pediatrician Walter Keller testified as an expert on child abuse. He examined Jane Doe in December 2003; she was seven at the time. Doe told Dr. Keller that defendant had performed a range of lewd acts similar to those detailed in the videotaped interview. Dr. Keller found physical evidence consistent with multiple penetrations with a finger or a penis. On a form, he checked a box for definite evidence of sexual abuse and/or sexual contact. He checked that box in only five percent of cases.

Defendants 23-year-old daughter, E., testified that defendant repeatedly molested her when she was around seven years old. He would touch her vagina almost every night.

In a police interview, defendant admitted that he touched Doe inappropriately and did things with her, but he provided few details.

Defendant testified at trial and denied that he molested Doe.

Discussion

I.                    Pitchess Motion

Before trial, defendant brought a discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, seeking information relating to three Richmond police officers, including the officer who conducted defendants interview. The trial court conducted an in camera hearing and thereafter denied disclosure of the police records, concluding that none of the material was relevant to defendants case.

Defendant and the People agree that it is appropriate for this court to review the sealed transcript of the in camera hearing to determine whether the trial court properly denied disclosure. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229.) This court has reviewed the sealed transcript. The trial court did not abuse its discretion in declining to disclose the records it reviewed. (Id. at p. 1232.)

II.                 Admission of Videotaped Interview

Defendant contends that the trial court erred in admitting a videotape of an interview of the victim conducted by the Martinez Childrens Interview Center. Defendants claim is without merit.

A.                 Evidence Code section 1360

Defendant contends that the videotaped statement was inadmissible under Evidence Code section 1360 (section 1360). Section 1360 is a limited statutory hearsay exception for statements by child victims under the age of 12 in criminal prosecutions for child abuse or neglect.[2] ( 1360; People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.) Defendant focuses on the requirement that the trial court find in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. ( 1360, subd. (a)(2).) He contends that the videotaped statement was inadmissible because the trial court did not conduct a hearing to determine whether the statement was reliable.

Defendants contention fails because he expressly declined to object to the admissibility of the videotaped statement, both before and at trial. It is well established that a defendant may not raise an issue on appeal relating to erroneous admission of evidence unless he made a timely and specific objection before the trial court. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) The objection requirement is necessary in criminal cases because a contrary rule would deprive the People of the opportunity to cure the defect at trial and would permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal. (Id. at p. 434.) Defendants section 1360 claim is not cognizable on appeal.[3]

B.                 Confrontation Clause

Defendant contends that admission of the videotaped statement violated the United States Constitutions Confrontation Clause, as interpreted in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

Crawford held that testimonial hearsay statements are inadmissible unless the declarant testifies at trial or the accused had an earlier opportunity to cross-examine a declarant who is unavailable at the time of trial. (Crawford, supra, 541 U.S. at pp. 68-69.) Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. (Ibid.) Defendant contends that the videotaped statement at issue here is testimonial under People v. Sisavath (2004) 118 Cal.App.4th 1396, 1402, which applied Crawford to a statement of an abuse victim obtained at Fresno Countys Multidisciplinary Interview Center.

Although Jane Does videotaped statement may be testimonial, defendants claim fails because Jane Doe did testify at trial and was subjected to cross-examination by defendant. As Crawford emphasized, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Defendant contends that he did not have a meaningful opportunity to cross-examine Doe because she testified before the videotape was shown to the jury. Defendant presents no authority for his argument that the timing of the video viewing denied him the opportunity to cross-examine Doe regarding the statement. Defendant knew that the prosecution intended to admit the videotaped statement from the in limine motions, but he did not request permission to question Doe about it during his cross-examination. Nor did the defendant request that the victim be recalled after admission of the statement for further cross-examination. Defendants Confrontation Clause claim is without merit.[4]

III.               Sufficiency of the Evidence

Defendant contends that the convictions on counts three, seven, and eight must be reversed for lack of sufficient evidence.

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

The information charged defendant in counts two and three with two acts of oral copulation in violation of section 288a, subdivision (c)(1). The prosecutor argued to the jury that count two was supported by the portion of the videotaped interview in which Jane Doe stated that during the first incident defendant both put his private in her private and licked her private. The prosecutor argued that count three was supported by the portion of the videotaped interview in which Doe stated that during the second incident defendant again licked her private. The interview transcript supports the prosecutors argument. Substantial evidence supports the conviction for two violations of section 288a, subdivision (c)(1).

The prosecutor argued that counts six, seven, and eight were committed during the fourth incident; Jane Doe told the interviewer that during that incident defendant licked her private, inserted his finger into her private, and had sex with her. Defendant argues that the evidence regarding that incident supports only one lewd act conviction because the licking and insertion of the finger constituted one lewd act and because the transcript of the interview does not show that defendant had sex with Doe on that occasion. He argues that the convictions on counts seven and eight must be reversed.

Defendants unsupported assertion that the two acts constituted one lewd act is without merit. It is well established that a defendant may be separately convicted for each lewd act committed on a single occasion. As the California Supreme Court explained, Each individual act that meets the requirements of section 288 can result in a new and separate statutory violation. [Citation.] As some courts already recognize, a more lenient rule of conviction should not apply simply because more than one lewd act occurs on a single occasion. [Citation.] Under defendants approach, the clever molester could violate his victim in numerous lewd ways, safe in the knowledge that he could not be convicted and punished for every act. (People v. Scott (1994) 9 Cal.4th 331, 346-347.) Substantial evidence supports the jurys finding that the touchings with the tongue and finger were separate lewd acts.

Defendant contends that there is no evidence that defendant had sex with Jane Doe on the fourth occasion of abuse. Doe stated during the videotaped interview, And then after that, he wanted to do the sex thing with me. But then I didnthe did sex with me, but then I didnt because I was. . . practicing my ballet . . . [][]And then he just wanted to do that. And I said, Okay, do that. Then I dont want to, I didnt want to do that after that . . . [][]And I didnt. Although that testimony is ambiguous, the interviewer confirmed that they had sex. She asked, You said that he licked your private and put his finger in your private that day. And then that he did sex with you and that you, you said thats when you decided you didnt want to do that anymore? The transcript reflects that Doe nodded her head in response. Substantial evidence supports the convictions for three lewd acts arising out of the fourth incident.

IV.              Imposition of the Upper Term

In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the United States Supreme Court concluded Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 870].) Relying on Cunningham, defendant contends the trial court imposition of the upper term in the present case violated his Sixth Amendment right to a jury trial. This contention fails under the California Supreme Courts recent decision People v. Black (2007) 41 Cal. 4th 799 (Black II).[5]

In Black II, our Supreme Court noted that in Blakely v. Washington (2004) 542 U.S. 296, the high court explicitly recognized the legitimate role of judicial factfinding in indeterminate sentencing, in which the judge may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. (Black II, supra, 41 Cal.4th at pp. 812-813.) Black II concluded that so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Id., at p. 813.) The court added that [t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense do not pertain to whether the defendant has a legal right to a lesser sentenceand that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. (Ibid.) Because the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term under Californias determinate sentencing law, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum for Sixth Amendment purposes. (Ibid.)

Applying those conclusions to the facts before it, Black II noted that the United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Black II, supra, 41 Cal.4th at p. 818 [citations omitted].) The court held that defendants criminal history alone rendered him eligible for the upper term sentence, stating defendants criminal history and the jurys finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence. . . . (Id., at p. 820.)

In the present case, the trial court imposed the upper term of eight years for count one and consecutive two-year sentences for the remaining counts. In selecting the upper term for count one, the trial court cited recidivist factors. The court noted that defendants record shows a pattern of increasing seriousness and that defendant violated probation by failing to provide notification that he was living in another country. Under Black II, those findings were permissible, and they rendered defendant eligible for the upper term.[6]

The trial court also cited reasons outside the scope of the recidivist exception, including the great bodily harm to the victim, the vulnerability of the victim, the fact that the defendant took advantage of a position of trust, and the fact that crimes reflected planning and sophistication. Those are findings which must be made by the jury under Cunningham. Here, we conclude beyond a reasonable doubt that the jury, applying the beyond-a-reasonable-doubt standard, would have found true at least two of those aggravating factors. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) First, we can conclude beyond a reasonable doubt that the jury would have found that Jane Doe was particularly vulnerable, as she was only four years old when she was first molested. Second, we can conclude with the same degree of certainty that the jury would have found that defendant abused a position of trust, as he was the victims uncle and permitted to babysit the victim and stay in the home. Under Sandoval, each of those factors independently rendered defendant eligible for the upper term. (Ibid.)

Defendant suffered no Sixth Amendment violation by the trial court exercise of its discretion in selecting the upper term.[7]

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

NEEDHAM, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

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

[2] Section 1360 provides: (a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:[] (1) The statement is not otherwise admissible by statute or court rule.[] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.[] (3) The child either:[] (A) Testifies at the proceedings.[] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.[] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.[] (c) For purposes of this section, child abuse means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and child neglect means any of the acts described in Section 11165.2 of the Penal Code.

[3] We note that [d]efendants who have elected self-representation may not thereafter seek reversal of their convictions on the ground that their own efforts were inadequate and amounted to a denial of effective assistance of counsel. (People v. Blair (2005) 36 Cal.4th 686, 722.)

[4] Because defendants confrontation clause claim fails on the merits, we need not determine whether the claim was forfeited by defendants failure to object to admission of the videotaped statement. We do not consider defendants contention that section 1360 is unconstitutional, which was raised for the first time in his reply brief. (People v. Thomas (1995) 38 Cal.App.4th 1331, 1333, fn. 1.)

[5] We requested and obtained supplemental briefing from the parties regarding the effect of Black II on this appeal.

[6]Black II held, contrary to defendants argument in the present case, that a finding regarding the increasing seriousness of a defendants convictions falls under the recidivism exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) The trial courts finding regarding defendants poor performance on probation also falls under the recidivism exception. (See People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [defendants poor performance on parole].) Black II also rejected the contention that imposition of consecutive terms implicates a defendants Sixth Amendment rights. (Black II, at pp. 820-823.)

[7] The People also argue that defendant forfeited his right to challenge the sentence because he did not raise an objection under Blakely at the time that sentence was imposed. However, sentencing occurred in March 2006, following our Supreme Courts June 2005 decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) 549 U.S. ___ [127 S.Ct. 1210]. Black I held that Blakely did not apply to the California determinate sentencing scheme, and a Blakely objection would, therefore, have been futile. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Thus, no forfeiture occurred. (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)