P. v. Neyra
Filed 4/3/13 P. v. Neyra 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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opinion has not been certified for publication or ordered published for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.
ABEL N. NEYRA,
Defendant and
Appellant.
2d Crim. No.
B236756
(Super. Ct.
No. VA114509-01)
(Los
Angeles County)
A jury convicted Abel N.
Neyra of two counts of committing lewd acts on a child (Pen. Code, § 288,
subd. (a)) and one count of continuous
sexual abuse (§ 288.5, subd. (a)).
He received a prison sentence of 16 years. We affirm.
FACTS
B.T. was born in
1992. She lived with her mother in her
grandmother's (I.) home.
Neyra is I.'s husband and also lived in th home.
Beginning when B.T. was
six years old, Neyra would enter her room at night and kiss her on the
mouth. He would kiss her with an open
mouth and use his tongue. This continued
frequently until B.T. was 11.
When B.T. was nine years
old, Neyra began kissing and touching her breasts. He would lift up her bed clothes and use his
hand and mouth.
When B.T. was 10 years
old, Neyra began putting his finger into her vagina. It happened frequently. On a few occasions, Neyra took B.T.'s hand
and made her touch his penis. This
happened until she was 11.
B.T. was afraid to
report Neyra's actions. But when she was
about eight or nine she told her friend, Y., and when B.T. was about 11 she
told her friend B.
When B.T. was 11, Neyra
kissed her on the neck while she was at her computer. B.T. told her mother (M.) that Neyra kissed
her on the neck, but she did not mention any other incidents. M. told I. and Neyra
about the kiss. From then on Neyra's
inappropriate behavior stopped.
In 2010, M. was talking
to a therapist when she mentioned the kissing incident. The therapist reported the matter to a social
worker who contacted the sheriff's office.
Deputy Stephen
Valenzuela interviewed B.T. B.T. told
Valenzuela about the molestations. She
was visibly upset during the interview.
She cried when she told him that Neyra had touched her vagina.
Neyra had taken I.
to the hospital for surgery. The police arrested him there. After he was taken to the police station,
however, he was taken back to the hospital so that his heart could be checked.
Detective Anthony Olague
interviewed Neyra at the hospital jail ward.
Olague introduced himself as a Sheriff's detective. He recorded the interview. Initially, Neyra told Olague that he engaged
in nonsexual kissing and that he was just playing. Later, he admitted he put his tongue in her
mouth while kissing her. He also
admitted he touched and kissed her breasts.
He did it many times. Neyra
denied, however, that he touched B.T.'s vagina or made her touch his penis
Olague suggested that
Neyra write a letter to B.T. Neyra
agreed to write a letter to ask B.T. to forgive him.
Neyra asked Olague about
going to court and the charges against him.
Neyra recognized that the charges are "the bad things I've
done." Neyra also asked about an
attorney and whether he would have to pay for one. Olague told him he would not have to pay.
Neyra asked Olague if he
could go home to see his wife, I. Olague
told him I. was still in the hospital. Olague told him that he spoke with I.'s
daughter, she told him I. had come out of the procedure,
and was fine.
Detective Olague
testified M. told him I. was in the hospital for surgery,
but he did not know that it was for removal of an ovarian tumor. Olague also testified Neyra never complained
that he was tired and had not slept for a long time.
Defense
testified on his own behalf. He was from
Peru where he
earned a "Ph.D." His thesis
was on incest among Hispanics. In
preparing his thesis, he interviewed several child molesters about their
crimes.
M. spoke to him about
kissing B.T. He said he was only playing
a game.
He was arrested at the
hospital after leaving his wife there for surgery. He was taken to the jail but returned to the
hospital when he started having pain down his arm and heart palpitations.
The first time Neyra
heard about B.T.'s accusations was when Olague interviewed him. During the interview, Neyra was hooked up to
a machine, he was affected by a Luken shot he had been given, he had not slept
or eaten for 36 hours, and his brain was not functioning well due to a problem
with his cerebral arteries. Initially, he
thought Olague was a doctor or Mr. Sanchez, a neighbor from Peru.
Before the recording
started, Olague told him that if he cooperated everything would be all
right. Because of his mental condition,
Neyra could not remember much of what he told Olague.
Neyra admitted he kissed
B.T. on the mouth once or twice. He did
not stick his tongue in her mouth since she was nine. He said the kissing was a cultural practice,
not sexual. He denied he touched her
breasts under her clothes or that he touched her vagina. He made untrue statements during the
interview because he believed if he cooperated he would be released to see I.
A number of family
members who lived with B.T. in I.'s house testified they
never saw Neyra enter her room at night or act inappropriately.
DISCUSSION
I.
Neyra contends the trial
court erred in limiting direct examination of himself and I.
During Neyra's direct
examination, the trial court ruled the reason for I.'s
surgery was not relevant. Defense
counsel asked the court in front of the jury, "Can it be in terms of
cancer?" The court said,
"No."
Nevertheless, defense
counsel asked Neyra, "Do you know whether the tumor was benign or
malignant?" The court sustained a
relevancy objection.
Neyra argues the reason
for the surgery was crucial to his defense.
He claims the seriousness of I.'s condition was
relevant to his state of mind during his confession. He testified he confessed because he believed
if he cooperated he would be released to see her.
If the trial court's
relevancy ruling was in error, it was harmless by any standard. Neyra subsequently testified that after his
arrest he was taken to the hospital due to stress "because [he] left [his]
wife alone in the hospital with cancer."
He also testified that he had not been able to sleep because he
"was imprisoned because of the arrest," his wife "had been
diagnosed with cancer" and he "was detained in the hospital when [he]
left her at the operating room" The
jury was well aware that Neyra's wife's surgery was for cancer.
During I.'s direct
examination, defense counsel asked, "Have you ever been around [Neyra]
when he's having palpitations or heart attacks?" The trial court sustained the prosecutor's
relevancy objection. The court stated,
"You've asked the question about his whole medical history. You know, if you're getting at what his
condition was exactly when the officers were questioning him, if she was there,
that's one thing."
The trial court's ruling
was correct. It is irrelevant whether
Neyra has "ever" had palpitations or a heart attack. Only his condition at the time of his
confession is relevant.
II.
Neyra contends the trial
court had a sua sponte duty to instruct on the lesser included offense of
battery. Neyra concedes the contention
only applies to counts 1 and 2, lewd act upon a child. (§ 288, subd. (a).)
There is a split of
authority on the question whether battery is a lesser included offense to a
violation of section 288. The question
is now before our Supreme Court in People
v. Shockley (2010) 190 Cal.App.4th 896, review granted March 16, 2011,
S189462.
In People v. Santos (1990) 222 Cal.App.3d 723, the question was
whether battery is a lesser related offense to a violation of section 288. In determining that it is the court without
analysis stated in dicta that battery is not a lesser included offense to a
violation of section 288. In
1278, the court rejected the People's argument that battery is not a lesser
included offense. The People argued
battery requires a touching, whereas a violation of section 288 can be
accomplished without touching the victim, as where the victim is persuaded to
touch himself. The court concluded,
however, that where the victim is persuaded to touch himself, it is a
"constructive touching" by the defendant. (Thomas,
supra, at p. 1293.) Thus a battery
as well as a violation of section 288 can be committed by such a constructive
touching. The court declined to follow
authority. (Ibid.)
Here the People argue
that battery requires a "harmful or offensive touching." (Citing People
v. Pinholster (1992) 1 Cal.4th 865, 961.)
The People claim, however, that a violation of section 288 can occur
without the touching being harmful or offensive. They cite People
v. Martinez (1995) 11 Cal.4th 434, 452, for the proposition that section
288 only requires that the touching be sexually motivated; it does not require
that the touching "be considered a means of sexual gratification by
members of the mainstream population."
But even if the touching would not be considered a means of sexual
gratification by the mainstream population, any sexually motivated touching of
a child is harmful or offensive. (See
dispute that any lewd act within the meaning of section 288 is necessarily
harmful or offensive touching"].)
Section 288 "assumes that young victims suffer profound harm
whenever they are perceived and used as objects of sexual desire. [Citation.]" (People
v. Martinez, supra, at p. 444.)
The People argue that a
battery must be nonconsensual, whereas consent is no defense to a violation of
section 288. The People cite no
authority, however, for the proposition that a child can consent to a harmful
or offensive touching. (See
501, 513 [consent generally not a defense to battery; apparent consent of a
child is ineffective].)
But it is not enough for
Neyra simply to show that battery is a lesser included offense. He must also show there is substantial
evidence that he committed only the lesser offense and not the greater
offense. (People v. Hughes (2002) 27 Cal.4th 287, 366-367.) Neyra points to no such evidence.
In any event, if it was
error not to give a sua sponte instruction on battery as a lesser included
offense the error was harmless. Neyra
confessed to putting his tongue in B.T.'s mouth while kissing her and to
kissing her breasts. There is no reasonable
probability Neyra would have obtained a more favorable result had the
instruction been given. (See
142, 176.)
III.
Neyra contends the
prosecutor committed misconduct.
In closing argument,
defense counsel stated:
"[I]t takes a lot
of guts to sit in that chair and be alleged to be a molester. It takes a lot of guts to fight a charge
like this.
In rebuttal, the
prosecutor stated:
"When defense
counsel talks about how this requires courage on the part of the
defendant to go through this, it doesn't require any courage. He has to be here. For [B.T.]
to get on the witness stand and to tell a bunch of strangers what her
step-grandfather did to her, violating her, to have to tell Deputy Valenzuela,
who is a nice guy, as you could tell from the witness stand - - but still, an
adult male that she has never met, wearing a uniform have to tell myself and
Detective Olague, who she has never met before, what her step-grandfather did
to her, violating her, that takes courage.
"Getting on the
witness stand at the prior hearing and being cross-examined by a defense
attorney whose job is to get the person who did these horrible things to her
off . . . .
"[DEFENSE
COUNSEL]: Your Honor, misstates my roll.
"THE COURT: All right.
I'll sustain the objections.
"Focus on the
evidence.
"[PROSECUTOR]: Whose job is to represent the defendant, who
cross-examines her as to minute details as to what happened up to 12 years ago,
that takes courage.
"The defendant
sitting right there and spewing the garbage out of his mouth that he did
earlier this morning does not take any courage.
It's, at best, ridiculous."
A prosecutor's
misconduct violates the federal Constitution when it comprises a pattern of
conduct so egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.
(People v. Hill (1998) 17
Cal.4th 800, 819.) Conduct of a
prosecutor that does not make the trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade the court or jury. (Ibid.)
Neyra argues the
prosecutor committed misconduct by referring to facts not in evidence. A prosecutor commits misconduct by referring
to facts not in evidence. (
230.) But the prosecutor enjoys wide
latitude in commenting on the evidence, including reasonable inferences and
deductions therefrom. (
Here the prosecutor told
the jury that it took no courage for Neyra to appear in court; he has to be
there. That comment was in direct reply
to defense counsel's statement that it took courage to fight a charge like
child molestation. Neyra cannot complain
that the prosecutor replied directly to his counsel's argument by truthfully pointing
out Neyra had to be in court.
The prosecutor also told
the jury that it took courage for B.T. to testify. B.T. testified about the intimate details of
comment on the evidence. It is also a
statement of the obvious.
Neyra also complains
that the prosecutor engaged in personal attacks on him and his counsel.
Neyra cites no case in
which attacking the defendant was held to be misconduct. In any event, characterizing the defendant's
testimony as "garbage" and "ridiculous" is within the
bounds of acceptable advocacy.
Of more concern is the
prosecutor's argument that it takes courage for B.T. to submit to
cross-examination "by a defense attorney whose job is to get the person
who did these horrible things to her off . . . ."
Prosecutorial misconduct
includes personal attacks on the integrity of opposing counsel. (People
v. Gionis (1995) 9 Cal.4th 1196, 1215.)
Telling the jury that defense counsel's job is to get the defendant off
is not misconduct unless the remark might be understood to suggest counsel was
obligated or permitted to present a defense dishonestly. (Id. at
p. 1217.) There was no such risk
here. The prosecutor was simply arguing
that B.T. was courageous in submitting herself to be cross-examined by defense
counsel. The prosecutor quickly
clarified his remarks by stating that it is defense counsel's job to
cross-examine B.T.
IV.
Neyra contends the trial
court's order for AIDS testing constitutes an unauthorized sentence.
Section 1202.1,
subdivision (d)(6)(A)(iii) requires the court to order AIDS testing of a person
convicted of violating section 288 "if the court finds that there is
probable cause to believe that blood, semen, or any other bodily fluid capable
of transmitting HIV has been transferred from the defendant to the victim . . .
."
The court ordered the
testing but made no such express finding.
Neyra did not object.
Unless the sentence is
"unauthorized" the failure to object waives any claim of defect on
appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.) A sentence is unauthorized where it could not
be lawfully imposed "under any circumstances in the particular
case." (Ibid.)
Because the testing
requirement could have been imposed had the trial court made the required
finding, the sentence is not unauthorized.
Thus Neyra has waived the defect for failure to object.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Clifford
L. Klein, Judge
Superior
Court County of Los Angeles
______________________________
Koryn & Koryn,
Daniel G. Koryn, 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, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for
Plaintiff and Respondent.
