P. v. Franco



















Filed 4/26/13 P. v. Franco 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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. RUBEN DEJESUS FRANCO, Defendant and Appellant.

E055308 (Super.Ct.No. INF1100806) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Jeffrey L.
Gunther, Judge. (Retired judge of the
Sacramento Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.

Nancy L. Tetreault, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and Michael T. Murphy and James D. Dutton,
Deputy Attorneys General, for Plaintiff and Respondent.

According to the daughter and stepdaughter of
defendant Ruben Dejesus Franco, he sexually molested each of them when they
were under 14. He started by playing a
“tickling game” with them; during this “game,” he would touch their breasts,
buttocks, or pubic area. In the case of
his stepdaughter, his conduct eventually escalated to oral copulation.

At trial, defendant admitted that he orally
copulated his stepdaughter once, and she orally copulated him once. However, he claimed that she “enticed”
him. He also claimed that the first
incident took place in Mexico
and the second took place after she had already turned 14. He claimed that, if he touched his own
daughter’s breasts or pubic area at all, he did so only while trying to cover
her up after her clothing became disarranged during the “tickling game.” Otherwise, he denied all the alleged sex
acts.

After hearing testimony for three days, a jury
took only one hour to find defendant guilty on seven counts of a nonforcible
lewd act on a child under 14. (Pen.
Code, § 288, subd.
(a).) A multiple-victim allegation for
purposes of the one strike law was found true.
(Pen. Code, § 667.61,
subd. (e)(5).) Defendant was sentenced
to a total of 46 years to life, plus the usual fines and fees.

Defendant
now contends:

1. The
statements that defendant made during an interview by the police while he was
in custody should have been excluded because he was not properly >Mirandized.

2.
Evidence Code section 1108, which allows the admission of prior sexual
offenses as propensity evidence, is
unconstitutional.

We find no reversible error. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. Uncharged Prior Acts in
Mexico.

When defendant started dating his wife-to-be, she
was pregnant by another man. Thus, in
1990, she gave birth to defendant’s stepdaughter, Jane Doe 1.href="#_ftn1" name="_ftnref1" title="">^[1] Defendant was the only father figure that
Doe 1 ever knew. Defendant and his
wife went on to have more daughters, including Jane Doe 2, born in 1998.

Doe 1 testified to a number of uncharged
sexual acts that took place when the family lived in Mexico. The first occurred when Doe 1 was
10. She and defendant were in bed,
“playing tickling,” and he grabbed her “butt” over her clothing.

The next day, again during a “tickling game,” defendant
grabbed her “vagina” over her clothing.
He told her “that [she] couldn’t tell [her] mom.”

After that, it “bec[a]me a regular thing” for
defendant to grab Doe 1’s vagina.
He progressed to rubbing her vagina over her clothing for 10 minutes or
so.

Finally, defendant progressed to oral sex. He would take off her clothes, tell her to
lie down in bed, and orally copulate her.

Defendant told her “he was the only thing [her]
mom had,” so if she ever told her mother, “[her] mom wasn’t going to believe [her]”
and “[her] sisters would hate [her].”

B. Charged Acts in Indio.

In 2002, when Doe 1 was 12, the family moved
to Indio. For a couple of months,
defendant stopped molesting her. Then,
however, he started grabbing her breasts or “butt,” over her clothes, whenever
they passed in the hallway.

One time, when Doe 1 was in sixth grade,
defendant came into her room and told her to put her mouth on his penis. She complied, but only for about 30
seconds. (Count 1.)

Defendant then got on top of Doe 1, put his tongue
in her mouth, and rubbed his body against hers.
He told Doe 1 to take off her clothes. She was “on [her] period.” When she told him this, “[he] just said that
it was okay, that he knew what he was doing . . . .”

Once she was naked, he told her to get down on
her hands and knees on the floor. He
rubbed the outside of her vagina, first with his finger, then with his
penis. (Counts 2 and 3.) Afterwards, he told her not to tell her
mother.

C. Doe 1’s Disclosure.

When Doe 1 was 15, she got pregnant by
another man. After that, defendant
stopped molesting her. When she was 17
or 18, she had a second child. When she
was 20, however, defendant started tickling her again. Sometimes he would try to take off her pants.

One time, when Doe 1 needed defendant’s
permission to go on a trip to Knott’s Berry Farm, he indicated that he would
let her go if she would let him grab her breast. She did.
As he was dropping her off to go on the trip, he told her that he wanted
to have intercourse with her. He explained
that “before he didn’t want to because [she] was a virgin and didn’t have any
experience, but ‘[n]ow you have two kids and you ha[ve] been with two guys, so
now you have more experience.’”

After the trip, Doe 1 never went back
home. She told a girlfriend about the
molestation. She heard that defendant
was threatening to try to get custody of her youngest child if she did not come
back home. She then told her mother that
defendant had molested her. Her mother
took defendant’s side and stopped talking to her. Doe 2 told Doe 1 that she hated
her.

D. First, Noncustodial
Police Interview of Defendant.

On October 26, 2010, the police interviewed
defendant. He went to the police station
voluntarily and was not under arrest.

At first, he denied any inappropriate
touching. He claimed that Doe 1 was
angry because he and his wife were going to seek custody of her youngest
child. However, after the police said
they were going to give him a lie detector test, defendant said, “I’m extremely
ashamed, but [Doe 1] told you the truth.”
He admitted molesting her twice in Mexico and twice in the United
States.

Defendant claimed that, in Mexico, Doe 1
told him to touch her, then took his hand and put it on herself; he could not
resist.

He also orally copulated her once or twice in
Mexico, again at her request.

He orally copulated her once in the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States, when she was 12 or 13.
(Count 4.) She also orally
copulated him once or twice.

Defendant insisted, “I didn’t want this to
happen,” adding, “It’s because the devil doesn’t sleep”

E. Forensic Interview of
Doe 2.

On October 27, 2010, a social worker conducted a
forensic interview of Doe 2. At the
time, Doe 2 was 11.

Doe 2 said that she believed Doe 1
because defendant “did the same thing to me . . . .” She and defendant would play; defendant would
tickle her. Then he would touch her breasts
under her bra. He would also touch her
pubic area under her clothes. This had
occurred three separate times in the preceding two months. (Counts 5, 6, and 7.)

At trial, Doe 2 testified that defendant had
touched her breast and pubic area, but only accidentally, while tickling
her. She claimed that she lied during
the forensic interview because she “panicked.”

F. Second, Custodial
Police Interview of Defendant.

On October 28, 2010, when defendant was in
custody, the police interviewed him again.
Because his statements in this second interview are pertinent to his >Miranda claim (see part II, >post), we discuss them in some detail.

The interview was almost entirely concerning
Doe 2. The police started by
telling defendant that Doe 2 was claiming that he had touched her breasts
and vagina “several times.”

Defendant was insistent that he did not “do anything”
to Doe 2. He explained that he and
Doe 2 would “play”; he would tickle her.
While they were playing, her pants and panties would come down. He told her to pull them up. He then pulled her panties up himself. He pointed out to her that she already had
pubic hair, and he warned her that “[t]he boys are going to notice it.” He told Doe 2 he was not going to play
with her anymore.

Similarly, while they were playing, her bra would
slide up (or down) and her breast would come out. He told her to cover up. He then pulled her bra down himself. He told her she was “turning into a woman”
and warned her that “[t]hey are going to want to grab you here.” Again, he told Doe 2 he was not going to
play with her anymore.

This had all happened two or three months
earlier, while they were living in La Quinta.

Defendant repeatedly asked the police to give him
a lie detector test, because it would show that he had no intention of
“molesting” Doe 2. He also
repeatedly asked them to give Doe 2 a lie detector test.

Defendant did not clearly state whether he
actually touched Doe 2’s breasts or genitals.href="#_ftn2" name="_ftnref2" title="">^[2] At one point, he stated flatly,
“ . . . I never touched her there.” At other times, however, he seemed to concede
that he did. For example, when asked,
“[T]he time you touched the breast, . . . how exactly did it
happen?,” he answered, “We were playing.”
Likewise, when asked, “When was the first time that you . . .
touched her down under?,” he answered, “[I]t was when we were living at that
apartment.”

The single statement by defendant that perhaps
best summarizes the entire interview was, “ . . . I may
have touched, but just touched, not touched in a malicious way.”

G. Defendant’s Trial
Testimony.

At trial, defendant admitted touching Doe 1
inappropriately while in Mexico, but only once, and only because she made him
do it. He was playing with her and
tickling her. She grabbed his hand and
put it “here,” over her clothes. He
immediately withdrew his hand.

He also admitted orally copulating Doe 1 in
Mexico, but again, only once and at her instance. She pulled down his shorts, “and she sucked
[him] twice . . . .” He
asked, “Who showed you how to do that?”
She replied, “[I]f you do it to me, I’ll tell you.” He “did it twice with the tongue,” then
stopped. She was angry, and said, “[Y]ou
didn’t do it. . . . I’m
not going to tell you.”

Defendant claimed there was only one
“inappropriate” incident in the United States.
Moreover, when it occurred, Doe 1 was 14. She told defendant, “ . . . I
want to do you with the mouth.” She then
took off his shorts. He did not have
time to react. She “managed to suck
[him] twice” before he “removed [him]self.”

Doe 1 then got naked, got down on all fours,
and said, “[D]o me then with your mouth, or put your thing there.” He realized that she had her period. He refused and left the room.

Defendant denied ever orally copulating
Doe 1 in the United States. When he
told the police that he did, he was confused, because he had a bad headache.

Defendant also testified that, when he tickled
Doe 2, sometimes her breast or pubic hair became visible. However, he denied touching her
inappropriately. He admitted that he
pulled up her bra, and “my nail, my finger perhaps touched her bust.” He denied pulling up her panties.

II

MIRANDA

Defendant contends that his statements to the
police in his second, custodial interview should have been excluded because the
Mirandahref="#_ftn3" name="_ftnref3" title="">^[3] warnings he was given were defective, and he
did not waive his Miranda
rights. To the extent that his trial
counsel forfeited this contention by failing to object, he contends that he
received ineffective assistance of counsel.

A. Additional Factual and
Procedural Background.

At the beginning of defendant’s second, custodial
interview, he was given the following by way of Miranda warnings (as translated from Spanish by a certified
interpreter):

“[OFFICER]:
. . . Okay. Look.
We came to talk to you about something.
So, I have to tell you something first.
Okay? Well, you have the href="http://www.mcmillanlaw.com/">right to remain silent. Anything you say can be used against you in
court. And you have a right to have an
attorney present during this, uh, while we are talking or as to how we are
going to talk. And if you cannot pay
one, pay this, pay for an attorney, the county will pay one for you. You, if you want one.

“DEFENDANT:
I don’t have, I don’t have the money.

“[OFFICER]:
Just if the county offers you one. Okay . . . Well, do you understand the rights that I
explained to you?” (Italics added.)

The transcript of the interview does not indicate
that defendant ever responded to that question or that he ever expressly waived
his rights. Defense counsel, however,
did not object to the admission of the second interview.

B. Analysis.

1. Forfeiture.

Defense counsel forfeited defendant’s present
contention by failing to object at trial.
(Evid. Code, § 353, subd. (a); People
v. Polk (2010) 190 Cal.App.4th 1183, 1194.)

Defendant argues that we have discretion to
consider a forfeited claim. That is not
true, however, when the claim involves the improper exclusion of evidence; in
that event, the claim is statutorily barred by Evidence Code section 353,
subdivision (a). (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)

2. Ineffective assistance.

Defendant therefore contends that his trial
counsel rendered ineffective assistance.

“‘“[I]n order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was
‘deficient’ because his ‘representation fell below an objective standard of
reasonableness . . . under prevailing href="http://www.fearnotlaw.com/">professional norms.’ [Citation.]
Second, he must also show prejudice flowing from counsel’s performance
or lack thereof. [Citation.] Prejudice is shown when there is a
‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ [Citations.]”
[Citation.]’ [Citation.]

“‘Reviewing courts defer to counsel’s reasonable
tactical decisions in examining a claim of ineffective assistance of counsel
[citation], and there is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”’ [Citation.]
‘[W]e accord great deference to counsel’s tactical decisions’
[citation], and we have explained that ‘courts should not second-guess reasonable,
if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed
reversible, and counsel’s decisionmaking must be evaluated in the context of
the available facts.’ [Citation.]

“In the usual case, where counsel’s trial tactics
or strategic reasons for challenged decisions do not appear on the record, we
will not find ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions. [Citations.]”
(People v. Weaver (2001) 26
Cal.4th 876, 925-926.)

Here, defendant’s statements in the second
interview were largely exculpatory, not inculpatory. Although he admitted touching Doe 2’s
breasts and pubic area, he denied doing so with any sexual intent. Rather, he told the police that he was only
trying to help her cover up and to teach her not to display those areas. He claimed that he even told her that he was
not going to play the tickling game with her any more. During the interview, he repeatedly asked the
police to give both him and Doe 2 a lie detector test.

Given Doe 2’s videotaped statements during
her forensic interview, a claim that defendant did touch Doe 2, but
without any sexual intent, was more credible than a claim that he never touched
her at all. Moreover, had defendant
tried to testify at trial that he never touched Doe 2, his statements in
the second interview, even if they were obtained in violation of >Miranda, could have been used to impeach
him. (Harris v. New York (1971) 401 U.S. 222, 224-226 [91 S.Ct. 643, 28
L.Ed.2d 1]; People v. Demetrulias
(2006) 39 Cal.4th 1, 29-30.)
Accordingly, at trial, defendant testified, consistent with his
statements in the second interview, that he touched Doe 2, but he lacked
sexual intent. The admission of
defendant’s statements in his second interview therefore actually helped his
defense by showing that he had promptly offered the same explanation to the
police.

Defense counsel could have had a reasonable
tactical purpose for not objecting to the second interview on >Miranda grounds. Separately and alternatively, we cannot say
that, if defense counsel had objected, and if the second interview had been
excluded, there is a reasonable probability that defendant would have enjoyed a
more favorable result. We therefore
conclude that defendant has not shown ineffective assistance.

III

THE CONSTITUTIONALITY OF
EVIDENCE CODE SECTION 1108

Defendant contends that Evidence Code section
1108, which makes prior sexual offenses admissible as propensity evidence,
violates due process and equal protection.

Defendant forfeited these contentions because he
did not raise them below. (Evid. Code,
§ 353, subd. (a); People v. Navarro
(2013) 212 Cal.App.4th 1336, 1347, fn. 9.)
He does not assert any theory under which we could consider them despite
the forfeiture, and we perceive none.

Separately and alternatively, however, we also
reject defendant’s constitutional contentions on the merits.

As defendant concedes, the California Supreme
Court has held that Evidence Code section 1108 does not violate due process (>People v. Falsetta (1999) 21 Cal.4th
903, 910, 922), and we are bound by that holding.

As defendant further concedes, this court has
held that Evidence Code section 1108 does not violate href="http://www.mcmillanlaw.com/">equal protection. (People
v. Waples (2000) 79 Cal.App.4th 1389, 1394–1395 [Fourth Dist., Div. Two];
accord, People v. Fitch (1997) 55
Cal.App.4th 172, 184-185.) Hence, we
reject this claim as a matter of stare decisis.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We
concur:





RAMIREZ

P. J.





HOLLENHORST

J.