P. v. >Aviles>

















Filed 4/26/13 P. v. Aviles CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE




>

THE PEOPLE, Plaintiff and Respondent, v. LUIS CIPRIAN AVILES, Defendant and Appellant.

G046280 (Super. Ct. No. 10CF0705) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Richard W. Stanford, Jr., Judge. Affirmed.

Mark Alan Hart, 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, Assistant Attorney General, James D. Dutton and Stephanie H. Chow,
Deputy Attorneys General, for Plaintiff and Respondent.

*
* *

A
jury convicted defendant Luis Ciprian Aviles of four counts of lewd acts on a
child under age 14 (Pen. Code, § 288, subd. (a)), and two counts of sexual
penetration with a child 10 years old or younger (Pen. Code, §§ 288.7,
subd. (b), 289). The jury made special findings that defendant committed lewd
acts on a child on more than one victim.
(Pen. Code, §§ 667.61, subd. (c), 1203.066, subd. (a)(7)). Defendant was sentenced to a prison term of
60 years to life.

On appeal, defendant
contends he received ineffective assistance of counsel when his counsel did not
object to certain hearsay testimony that was admitted as a spontaneous
declaration under Evidence Code section 1240. Finding neither ineffective assistance nor
prejudice from counsel’s decision not to object, we affirm.



FACTS



The two victims are
V.C., who was four years old at the time of the molestation described below,
and C.D., who was five years old at the time.
They are cousins. The defendant,
age 50 at the time, was the grandmother’s boyfriend. V.C., her parents, C.D., and C.D.’s mother all
lived at the grandmother’s house.
Defendant spent the night at the grandmother’s house almost every day,
but lived in his own trailer nearby.

On January 19, 2008, at approximately noon, the grandmother dropped V.C. and C.D. off
at defendant’s home while the grandmother and C.D.’s mother went to lunch. After the adults left, defendant put on a
pornographic video. Defendant then
pulled down V.C.’s underwear, kissed her, performed oral sex on her, sucked her
breasts, rubbed his penis against her buttocks, and penetrated her vagina with
his finger. Afterwards V.C. felt burning
when going to the bathroom. Defendant
performed many of the same acts on C.D.
Defendant also exposed his penis to the victims. Both victims witnessed the other’s
molestation.

Defendant had previously
molested both victims. He had previously
performed oral sex on V.C. while at the grandmother’s house. And he had also molested C.D. C.D. previously slept in the same bed as
defendant and the grandmother. On more
than 20 occasions, defendant took off her diaper and digitally penetrated both
her vagina and anus. Defendant told C.D.
not to tell her mother because the police would be after him.

Defendant did not stop
molesting C.D. after the incident on January
19, 2008. He again digitally
penetrated C.D.’s anus and vagina when she subsequently visited on
vacation.

After the molestation on
January 19, 2008, at
approximately 4:30 p.m. that same
day, C.D. and V.C. approached V.C.’s father O.C., and told him about the molestation. V.C.’s statements to O.C., which are
described in detail below, are the hearsay statements at the center of this
appeal. The next day, O.C. reported the
incident to the police.

The police came out the
same day that O.C. reported the incident and interviewed both V.C. and
C.D. Both victims described the
molestation defendant had inflicted on them.
During the interview, V.C. was crying and the interview had to be suspended
multiple times to permit V.C. to compose herself. It was difficult for V.C. to discuss what
happened. The officer attempted to
interview the grandmother and C.D.’s mother, but found both uncooperative.

After the interviews,
V.C. and C.D. were taken for a physical exam.
There were no physical findings.
According to the People’s expert, physical findings are only present in
approximately 5 to 10 percent of sexual assaults on children under 10 years
old.

Approximately two weeks
later, V.C. and C.D. were brought in for interviews with a social worker from
the Child Abuse Services Team
(CAST). During the interview, V.C.
extensively described what happened to her and C.D. C.D. likewise described the molestation,
though somewhat more reluctantly.

After the interviews
took place, the police sought to locate defendant but defendant had fled to
avoid arrest.

C.D.’s mother, who was
separated from C.D.’s father, did not inform the father about the molestation
allegations. C.D.’s mother was concerned
that if C.D.’s father found out, he would take her to court to obtain greater
custody of C.D. and she would lose visitation rights.

Approximately two years
later, in March of 2010, C.D., now seven years old, finally disclosed to her
father that defendant had molested her.
C.D.’s father immediately packed the family into a car and drove from Texas,
where they lived, to California
to file a police report. The following
day, C.D. was given a second CAST interview where she offered greater detail
than her previous interview about what had happened on January 19, 2008.


At around the same time,
the police visited the grandmother’s home a second time to investigate C.D.’s
most recent complaint. Defendant was
present at the house this time. The police
asked defendant his name, but he falsely identified himself as “Fernando
Guzman,” claiming he had no identification.
Similarly, C.D.’s mother falsely told the police that defendant was a
man named “Fernando Nagera,” and offered to retrieve a pay stub to prove the
false identity. Another individual at
the house, however, identified defendant as “Luis” (his true first name). The police then threatened to have C.D.
identify defendant, at which point C.D.’s mother reluctantly admitted
“Fernando” was in fact defendant. C.D.’s
mother refused to answer questions afterwards, and instead began to cry. She later pleaded guilty to child
endangerment.

In April of 2011 the
People filed an information charging defendant with four counts of lewd acts on
a child under age 14 (Pen. Code, § 288, subd. (a)), and two counts of
sexual penetration with a child 10 years old or younger (Pen. Code,
§§ 288.7, subd. (b), 289). The
People alleged as a special circumstance that defendant committed lewd acts on
a child on more than one victim. (Pen.
Code, §§ 667.61, subd. (c), 1203.066, subd. (a)(7)).

The People moved in
limine to admit V.C.’s statements to O.C. under the spontaneous declaration
exception to the hearsay rule, Evidence Code section 1240. The People’s offer of proof was as follows: O.C. “arrived home from work at approximately
4:30 p.m. on January 19, 2008.
He asked [V.C.] to tell him what she did during the day. [V.C.] told him in Spanish, ‘Luis me tacho’,
meaning ‘Luis touched me.’ [O.C.] asked
her where Luis touched her and she told him ‘Luis me tacho mi colita,’ meaning
‘Luis touched my vagina.’ [O.C.] asked
how and [V.C.] told him he inserted his finger.
[V.C.] told [O.C.] that the defendant pulled down her pants and inserted
his finger inside her vagina several times.
Her vagina hurt and it burned to urinate.” The trial court asked defense counsel if
there was any objection to permitting the testimony, to which counsel replied,
“No, your honor, there’s no objection, assuming the foundation can be laid
under [Evidence Code section] 1240.” The
trial court admitted the evidence, stating, “The foundation offered in the
moving papers would appear to be sufficient.
I’ll just trust on the Defense, if there is anything lacking in the
actual testimony, and the offer of proof then would be insufficient on the
record, then, make sure you bring it to my attention.”

At trial, O.C.
testified, without objection, as follows:
On January 19, 2008, after returning home from work at about 4:30 p.m.,
C.D. approached him and complained that defendant had molested her. While he was speaking to C.D., V.C. entered
the room. V.C. also told him that she
had been touched while at defendant’s house.
Specifically, V.C. pointed out to O.C. that she had been touched in her
vagina; that defendant had penetrated her vagina with his finger; and she said
she did not like it and that she was in pain.
V.C. and C.D. were visibly unhappy.


V.C. and C.D. both
testified at trial to the molestation. Also, the videos of the CAST interviews, in
which V.C. and C.D. extensively describe the molestation, were played for the
jury and admitted into evidence together with written transcripts of the
videos. Additionally, Officer
Castellanos, the initial responder, testified to what V.C. and C.D. told him
happened in his initial interview of the victims. The defense offered no evidence.

The jury convicted
defendant on all counts and made special findings that defendant committed lewd
acts on a child on more than one victim.
(Pen. Code, §§ 667.61, subd. (c), 1203.066, subd. (a)(7)). The court sentenced defendant to a prison
term of 60 years to life. Defendant
timely appealed.



DISCUSSION



Defendant
raises a single contention on appeal:
that he was denied effective assistance of counsel because his counsel
did not object to O.C.’s testimony regarding V.C.’s initial complaint to him
that defendant had molested her. We
disagree.

The href="http://www.fearnotlaw.com/">federal and state Constitutions entitle a
criminal defendant to the effective assistance of counsel. (People
v. Kipp (1998) 18 Cal.4th 349, 366.)
This entitlement, vital to the adversarial process, helps ensure the
defendant receives a fair proceeding and a just result. (Strickland
v. Washington (1984) 466 U.S. 668, 686 (Strickland).)

To prove
an ineffective assistance claim, a defendant must show that

(1)
“counsel’s performance was deficient,” and
(2) “the deficient performance prejudiced the defense.” (Strickland,> supra, 466 U.S. at p. 687.) A court need not “address both components of
the inquiry if the defendant makes an insufficient showing on one.” (Id.
at p. 697.)

We measure
the adequacy of counsel’s performance by determining whether counsel’s
assistance was reasonable “under prevailing professional norms” (>Stickland, supra, 466 U.S. at p. 688) and in light of all circumstances
existing at “the time of counsel’s conduct.”
(Id. at p. 690.) Because defense counsel face a “variety of
circumstances” and an array of “legitimate decisions” (id. at p. 689), a court must “accord great deference to counsel’s
tactical decisions” (People v. Lewis
(2001) 25 Cal.4th 610, 674) and “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance . . . .” (>Strickland, at p. 689.) Furthermore, “[i]f the record contains no
explanation for the challenged behavior, an appellate court will reject the
claim of ineffective assistance ‘unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory
explanation.’” (People v. Kipp, supra, 18
Cal.4th at p. 367.) “Generally, failure to object is a matter of trial tactics
as to which we will not exercise judicial hindsight.”

(People v. Kelly (1992) 1
Cal.4th 495, 520.)

To prove
prejudice, a “defendant must show that 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.” (Strickland, supra, 466
U.S. at p. 694.) “When a defendant
challenges a conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.” (>Id. at p. 695.)

Here, the
record does not reveal why defense counsel decided not to object to O.C.’s
testimony on hearsay grounds, nor was counsel asked to explain his
decision. Thus we may reverse only if
“‘there simply could be no satisfactory explanation.’” (People
v. Kipp, supra, 18 Cal.4th at p. 367.)
We conclude there is a satisfactory explanation here — O.C.’s testimony
was admissible under Evidence Code section 1240.



The Trial Court Did Not Err in Admitting O.C.’s Testimony Under
Evidence Code Section 1240

Evidence Code section
1240 provides, “Evidence of a statement is not made inadmissible by the hearsay
rule if the statement: [¶] (a) Purports to narrate, describe, or explain
an act, condition, or event perceived by the declarant; and [¶]
(b) Was made spontaneously while the declarant was under the stress of
excitement caused by such perception.”
“‘“To render [statements] admissible [under the spontaneous declaration
exception] it is required that (1) there must be some occurrence startling
enough to produce this nervous excitement and render the utterance spontaneous
and unreflecting; (2) the utterance must have been before there has been time
to contrive and misrepresent, i.e., while the nervous excitement may be supposed
still to dominate and the reflective powers to be yet in abeyance; and (3) the
utterance must relate to the circumstance of the occurrence preceding it.” [Citations.]’
[Citation.] Spontaneous
statements are deemed sufficiently trustworthy to be admitted into evidence
because ‘“‘in the stress of nervous excitement the reflective faculties may be
stilled and the utterance may become the unreflecting and sincere expression of
one’s actual impressions and belief.’” [Citation.]’” (People
v. Gutierrez (2009) 45 Cal.4th 789, 809-810.)

Here, despite defense
counsel’s lack of objection, the trial court analyzed the People’s offer of
proof and determined that it satisfied Evidence Code section 1240. “As this is a factual question, we will
uphold the trial court’s determination if it is supported by substantial
evidence. [Citation.] We review for abuse of discretion the
ultimate decision whether to admit the evidence.” (People v. Phillips
(2000) 22 Cal.4th 226, 236.) “Whether
the requirements of the spontaneous statement exception are satisfied in any
given case is, in general, largely a question of fact.
[Citation.] . . . [Citation.] In performing this task, the ‘court
necessarily [exercises] some element of
discretion . . . .’
[Citation.] [¶] Because the second requirement [( i.e. a
timely complaint)] relates to the peculiar facts of the individual case more
than the first or third does [citations], the discretion of the trial court is
at its broadest when it determines whether this requirement is met [citation]. Indeed, Dean Wigmore goes so far as to urge
that the issue should be left ‘absolutely to the determination of the trial
court.’” (People v. Poggi (1988) 45 Cal.3d 306, 318-319; see 6 Wigmore,
Evidence (Chadbourn rev. ed. 1976) § 1750, p. 221.) “‘Neither lapse of time between the event and
the declarations nor the fact that the declarations were elicited by
questioning deprives the statements of spontaneity if it nevertheless
appears that they were made under the stress of excitement and while the
reflective powers were still in abeyance.’” (Poggi, at
319.)

Although some cases have
restricted the time lapse between the stressor and the statement to mere
minutes (See In re Cheryl H. (1984)
153 Cal.App.3d 1098, 1130, abrogated on other grounds by People v. Brown (1994) 8 Cal.4th 746, 754) in cases involving
young children, courts have indulged significantly longer lapses of time where
the requirements of Evidence Code section 1240 are otherwise met.

For example, in >People v. Trimble (1992) 5 Cal.App.4th
1225 (Trimble) a two-and-one-half
year old witnessed her father murder her mother. Nearly two days later, once the child was
taken from the father’s presence, the child frantically described to a relative
what she saw. The relative’s testimony
about the statement was admitted as a spontaneous declaration, and the
defendant was convicted of murder. The
Court of Appeal affirmed, finding the statement was properly admitted because
the evidence indicated she was still in a state of excitement, and thus,
particularly given the child’s age, the hearsay was admissible: “The startling event she had witnessed and
described was undoubtedly monumentally stressful for a child of that age.” (Id.
at p. 1235.)

Similarly, in >In re Emilye A. (1992) 9 Cal.App.4th
1695 (Emilye A.) a two years and 11
months old minor was playing with her mother when she told her mother, “a day
or two” after being molested (id. at
p. 1713) that her father had given her an “owie” inside her vagina (>id. at p. 1700). At a subsequent juvenile dependency hearing,
the mother testified to these statements, but the daughter did not
testify. (Id. at pp. 1700-1701). The daughter was held to be a dependent of
the court and custody was vested in the mother.
(Id. at pp. 1704-1705.) On appeal, the father claimed ineffective
assistance of counsel in that the daughter was not brought in to determine
whether she was competent to testify. (>Id. at p. 1711.) The court of appeal affirmed, finding no
prejudice from any ineffective assistance because the daughter’s testimony
would have been cumulative to her hearsay statement, which properly admitted as
a spontaneous declaration through the mother: “These circumstances, i.e., that
the statements were made spontaneously, while in the midst of play, that they
were made by a child sufficiently young that her reflective powers would be
relatively unsophisticated, and that they were made while the minor was in pain
[citation] all indicate that they were made under stress or excitement, while
the declarant’s reflective powers were still in abeyance.” (Id. at
p. 1713.)

Here, there was
substantial evidence to support the trial court’s ruling that V.C.’s
out-of-court statement satisfied Evidence Code section 1240. There is evidence that V.C. was still under
the stress of the molestation when she made her statement. As in Emilye
A., V.C. told O.C. she was still in pain at the time she made her
statement. Further, on the following day
when the police officer interviewed V.C., she was crying throughout the
interview, to the point where the interview was interrupted multiple times so
that V.C. could compose herself, evidencing continuing emotional distress. Further, there was significantly less time
between the stressor and V.C.’s statement than in Trimble and Emilye A:
approximately four hours. We find no
abuse of discretion in admitting this evidence.

Defendant argues the
trial court erred based on O.C.’s testimony that he did not perceive any
abnormalities in the victims’ behavior, nor did it appear to O.C. that they had
been crying. While those were certainly
relevant facts, they are not dispositive.
(People v. Poggi, >supra, 45 Cal.3d at p. 319 [“the fact that the declarant has become calm
enough to speak coherently also is not inconsistent with spontaneity”].) Our
review is limited to determining whether substantial
evidence supports the trial court’s ruling and whether the court properly
exercised its associated discretion. As
set forth above, substantial evidence supports the ruling and there was no
abuse of discretion.

Defendant also argues
that, even if the trial court’s original ruling was proper, defendant’s counsel
should have objected because of differences between the prosecution’s offer of
proof and O.C.’s testimony at trial. In
particular, the offer of proof indicated that O.C. asked V.C. how her day was,
and she responded by describing the molestation. At trial, O.C. testified that C.D>. first approached him and complained of
the molestation, that he did not ask any questions, and that V.C. offered her
account of what happened after C.D. described the molestation. Arguably, however, the fact that V.C. offered
her account not in response to a
question only makes her statement more spontaneous. (See
People v. Poggi, supra, 45 Cal.3d
at p. 319 [“whether [the statements] were delivered directly or in response to
a question are important factors to be considered on the issue of
spontaneity”].) Regardless, the
distinction between the offer of proof and the testimony at trial was
minor. Defense counsel could have
reasonably concluded that such a minor variation between the offer of proof and
the actual proof would not have changed the trial court’s ruling.

Finally, the defendant
analogizes the present case to People v.
Ramirez (2006) 143 Cal.App.4th 1512 (Ramirez),
but that case is distinguishable. There,
a 16-year-old was raped. After the rape
the victim took a shower and then asked the perpetrator to drive her home. She fell asleep in the car. The next morning, approximately five hours
later, she awoke in pain and in an apartment she did not recognize. She stated to the occupants of the apartment
that she had been raped but that she did not want to call her brother because
she thought her brother would be angry.
(Id. at pp. 1517-1519.) The trial court admitted the out-of-court
statements made to the apartment occupants under Evidence Code section
1240. On appeal, the majority held it
was error, finding, “the evidence indicates not only that [the victim] was able
to deliberate or reflect on what had occurred, but that she in fact did
so.” (Ramirez, at p. 1525.)
According to the majority, the content
of what [the victim] said indicated deliberation: “Contrary to the suggestion in the concurring
opinion, it is not merely that [the victim] ‘spoke clearly and distinctly, or
was oriented to reality’ that leads us to conclude that she engaged in a
deliberative process, and thus, that the statements at issue do not come within
the hearsay exception for spontaneous statements. [Citation.]
In addition to these factors, and most important for purposes of our
analysis, is the content of [the victim’s] statements. [The victim] stated a number of times that
she was worried about what her brother would do if he were to find out what had
happened to her. These statements
demonstrate that [the victim] in fact engaged in a deliberative or reflective
process as to the subject matter of the statements at issue, and thus establish
that her reflective powers were not ‘yet in abeyance.’ In our view, the
fact that [the victim] actually engaged in a deliberative or reflective process
as to the subject matter of the statements at issue is dispositive.” (>Id. at p. 1526.)

We find no similar
circumstance here. Unlike the victim in >Ramirez, who was 16 years old, V.C. was
only four years old and thus had limited deliberative faculties to begin
with. (See Emilye A., supra, 9
Cal.App.4th at 1713 [stating that an almost three-year-old’s statements “were
made by a child sufficiently young that her reflective powers would be
relatively unsophisticated”]; Ramirez,
supra, 143 Cal.App.4th at p. 1533
(conc. opn. of Benke, J.) [“in making the determination of this mental state it
may be necessary to consider the age of the declarant”].) Further, unlike >Ramirez, nothing about the content of
V.C.’s statements to O.C. indicates she had made deliberative conclusions about
what happened. Rather, she simply
relayed the events of the molestation.

In light of the evidence
of continuing stress and physical pain, V.C.’s age, and the relatively short
time lapse between the molestation and the statement, the trial court’s
pretrial ruling was supported by substantial evidence and admitting the
evidence was not an abuse of discretion. Defense counsel’s decision not to object,
therefore, was reasonable and was not ineffective assistance.



>Defendant Was Not Prejudiced

Even if we were to find
that V.C.’s out-of-court statements were inadmissible hearsay and that it was
unreasonable for counsel to withhold objection, we would nonetheless affirm
because defendant has not shown prejudice.
Exclusion of O.C.’s testimony would not have affected the outcome.

The hearsay testimony at
issue was cumulative of other testimony in the record. V.C. related the same facts in much greater
detail during her extensive interview with a social worker at CAST, which was
admitted into evidence under Evidence Code section 1360 without
objection. And V.C. testified to the
same facts at trial. There was no
objection to that evidence at trial, and defendant does not contend on appeal
the evidence was inadmissible. O.C.’s
testimony, by contrast, was short, offered little detail, and was eclipsed by
the extensive testimony from V.C.’s CAST interview and trial testimony. Further, the prosecutor’s closing argument
did not focus on V.C.’s statement to O.C., but instead focused on the CAST
interviews and the trial testimony. As
the prosecutor stated, “The best evidence is those CAST videos.” Based on the cumulative nature of the
evidence alone, we would find no prejudice.
(See People v. Blacksher
(2011) 52 Cal.4th 769, 818, fn. 29 [“Even assuming [the declarant’s] statements
. . . were not spontaneous for purposes of Evidence Code section 1240, their
admission could not have been prejudicial by any standard because they were
identical to [other statements properly admitted], and were therefore
cumulative”].)

Additionally, unlike the
declarants in Trimble, >supra, 5 Cal.App.4th 1225,> and Emilye
A., supra, 9 Cal.App.4th 1695,
V.C. testified at trial. Thus defendant
had the opportunity to cross-examine V.C., mitigating the prejudice of any
out-of-court statements. (See> Ramirez, supra, 143 Cal.App.4th at p. 1526 [In a rape trial, victim’s
hearsay statements were erroneously admitted as spontaneous statements under
Evid. Code, § 1240, but there was no prejudice because the victim testified and
“[t]hus the jury did not have to rely solely on secondhand statements she made
to third parties. Rather, it had the
opportunity to hear from [the victim] directly and to judge her
credibility. The [hearsay statements]
were merely cumulative to [the victim’s] testimony at trial”].)

Finally, the evidence of
defendant’s guilt was overwhelming.
C.D.’s extensive testimony corroborated V.C.’s extensive testimony
regarding the molestation. Defendant
fled the police. He then lied about his
identity when first confronted by the police.
The defendant, on the other hand, put on no href="http://www.fearnotlaw.com/">affirmative evidence and did not
significantly impeach the People’s evidence.

Given the cumulative
nature of the testimony at issue, the fact that V.C. testified at trial, and
the otherwise overwhelming evidence of defendant’s guilt, we find that
counsel’s failure to object to O.C.’s hearsay testimony did not prejudice
defendant.



DISPOSITION



The judgment of the
trial court is affirmed.







IKOLA,
J.



WE CONCUR:







FYBEL, ACTING
P. J.







THOMPSON, J.