P. v.
Filed 5/24/13 P. v. Campos CA2/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCOS ANTONIO CAMPOS,
Defendant and Appellant.
B238020
(Los Angeles County
Super. Ct. No. KA090680)
APPEAL
from a judgment of the Superior Court of
County. Douglas W. Sortino,
Judge. Affirmed.
Verna
Wefald, 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, Scott A Taryle,
Supervising Deputy Attorney General, and John Yang, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________________
Defendant Marcos Antonio Campos
appeals from the judgment entered following a jury trial in which he was
convicted of committing a forcible lewd act upon a child under the age of 14
and continuous sexual abuse of a child under the age of 14. Defendant contends the trial court erred by
denying his motion for a new trial on
the basis of newly discovered evidence.
We affirm.
BACKGROUND
B.C., who
was referred to in the record as Jane Doe, was born September 21, 1996, was the
youngest child of M.C. (Mr. C.) and G.C. (Mrs. C.). At the time of the charged offenses, B.C.
lived in a two-bedroom house with her parents, her sister S. (who was one year
older than B.C.), and defendant, who was B.C.’s brother and was about 16 years
older than she was. B.C. and defendant
also had several other siblings who did not live in the family home, including
Maria L. and Blanca C., who were about 14 and 11 years older than B.C.,
respectively. B.C. shared a bedroom with
S., who had Down’s Syndrome. Defendant
slept on the living room sofa in the family’s first home in Baldwin Park, and
in the laundry room in their second Baldwin Park home, to which they moved in
February of 2010. Defendant moved out of
the family home in 1999, but moved back in 2003. B.C. was very close to her sisters and
parents.
Mrs. C.
testified that sometime in March 2010, her daughter Maria told her that
“something had happened between†B.C. and defendant. B.C. then told Mrs. C. that defendant had
“touched†her. Mrs. C. spoke to
defendant, who denied touching B.C., saying, “‘If you think I did something,
call the police.’†Mrs. C. could not
believe defendant had done that. She did
not call the police, but told defendant to leave the house. Defendant nonetheless remained in the house
for one or two days while the family “looked for a place†where he could get
substance abuse treatment. On May 7,
2010, B.C.’s teacher Cynthia Carrera phoned Mrs. C. and said that B.C. had an
“aggressive attitude.†Mrs. C. gave
Carrera permission to refer B.C. to counseling.
Cynthia
Carrera testified that she was B.C.’s speech therapist in middle school. B.C. has a below-average IQ and a language
learning disability. Carrera and B.C.
developed a close relationship. B.C. had
always been a “peacemaker†and “very joyful,†but sometime around spring break
in 2010, she changed dramatically. She
became rude, began withdrawing from and rejecting her friends, and stopped
seeking Carrera’s assistance with homework assignments. She also began asking Carrera questions such
as how a girl becomes pregnant and what kind of language boyfriends and
girlfriends use. B.C.’s friend Nancy
asked Carrera to talk to B.C. Carrera
asked B.C. about her behavior but, atypically, B.C. became defensive and said
that she had to tell Carrera something, but could not do so because people
would become very upset. The next day,
B.C. visited Carrera at lunch and spoke in a disjointed fashion. B.C. mentioned suicide and asked Carrera what
language a boyfriend used with his girlfriend.
The next day, B.C. and Nancy
visited Carrera together. B.C. seemed
happy and said she had a lot to tell, though her family would be upset. B.C. said she was no longer considering suicide
because an angel had come to her in a dream and told her she could not kill
herself because too many people would be sad.
The angel told her she needed to do what was right. B.C. revealed she had been upset because her
brother had been making advances.
Carrera testified that B.C. said, “‘He’s played with my boobs and he says
things to me that a boyfriend would say to a girlfriend, and he tells me that
I’m very beautiful . . . .’†B.C. also said that she had previously told
her mother. She began to cry. Carrera told B.C. that her brother’s conduct
was wrong, and she was going to have to make some phone calls. B.C. said she felt relieved. Carrera phoned school officials and the
Department of Children and Family Services (DCFS). Three days later, B.C. seemed confused and
told Carrera that the DCFS had visited her home.
Officer
Alexis Rodriguez testified that he went to B.C.’s school on May 11, 2010 in
response to a report from social services.
He spoke to B.C. in the principal’s office, where she told him that her
brother sexually touched her “bare skin†with his hands in the areas of the
breasts, vagina, and buttocks. B.C.
agreed to go to the police station with Rodriguez, and there he conducted a
more thorough interview. Rodriguez
testified that he was calm and friendly with B.C. and never threatened
her. She revealed that defendant began
touching her sexually under her clothing with his hands when she was six or
seven years old. B.C. told Rodriguez
that when she was about eight or nine, defendant began removing her clothing
and penetrating her vagina with his finger.
Defendant told B.C. that if she told anyone, she and defendant would get
in trouble. When B.C. was 9 to 11 years
old, defendant penetrated her vagina with two fingers. When she was 11½ years old, defendant began
raping her. She told Rodriguez that
defendant held her down on the bed and inserted his penis in her vagina while
he wore a condom. She said the
experience was physically painful and lasted until fluid came out of
defendant’s penis. Thereafter, defendant
did this to her two or three times a week until she was 13 years old. As B.C. described the incident, she was
nervous and teary-eyed. She said she had
not informed anyone until about two months earlier, when she told her sister.
Rodriguez spoke to Mrs. C., who
confirmed that B.C. had told her defendant had touched her from the time she
was 6 years old until she was 13. She
also confirmed that there were times when B.C. and defendant were home alone
together. Rodriguez, who was concerned
that Mrs. C. had not reported the molestation,
raised the possibility of putting B.C. in foster care. Mrs. C. began crying. She expressed anger toward defendant.
Mrs. C. testified that she did not
believe that everything B.C. had reported was true. In particular, she did not believe that B.C.
had been abused since the age of 6 because at that time, Blanca lived at home
and slept in the same room as B.C. B.C.
always shared a room with S., who never reported anything. Defendant and B.C. were never alone together
until B.C. was 12 years old.
Social
worker Deborah Davies conducted a video-recorded interview of B.C. on May 26,
2010. The parties stipulated to the
accuracy of the recording and transcript, and the recording was played at trial
in lieu of Davies testifying. B.C.
told Davies that defendant touched and
raped her when he was “drugged.†She
initially stated that this began when she was 10 years old, but later stated it
began when she was 11. She remembered
telling the police officer that it began when she was 6 years old, but she now
remembered she was 10. B.C. said
defendant would enter her bedroom at night, pull off her blanket, and touch her
all over her body with his hands.
Sometimes he would take her clothes off.
One time she locked her door, but defendant unlocked it with a kitchen
knife. B.C. screamed, but her mother was
asleep and did not hear her. On
occasion, B.C. tried to run from defendant, but he would grab her and touch
her. Sometimes she slapped his face, and
he would scream at her. Sometimes she
ran to her mother’s room, but then defendant would “act[] normal.â€
B.C. told Davies that defendant
raped her when she was 12 years old. She
said he would take her clothes off, put on “protection†that he took out of his
wallet, and penetrate her with his “private thing.†The first time he did that, it hurt her and
she bled. Afterward, she was in shock
and cried all day. She was not able to
walk properly and her sister Blanca noticed.
Thereafter, the rapes would occur about once a week when her parents
were at work and when defendant was drunk or doing drugs. She tried locking her door, but defendant
pried it open and damaged the wood.
Once, when defendant removed her clothing in the living room, B.C.
yelled for S., who came into the room.
Defendant told S. to go back to bed.
S. left, and defendant proceeded to rape B.C. Sometimes B.C. tried to phone her mother, but
defendant would grab the phone and break it.
Sometimes defendant would put his fingers inside of B.C. B.C. initially told Davies that she was 13
the last time defendant raped her. Later
she said that defendant had not raped her since she was 12; he had only touched
her. Defendant always told her not to
tell their parents or he would be sent to jail and might get killed. He also threatened that he would take her far
away where no one would find them.
B.C. told Davies that after she
told her mother about what defendant was doing, her mother confronted
defendant, who said, “‘Yeah, I did.’â€
B.C.’s father wanted to call the police, but B.C.’s mother did not want
to and convinced her father to send defendant to rehabilitation.
Nurse and
sexual assault examiner Dawn Henry testified that she performed a non-acute
sexual assault examination on B.C. on June 1, 2010. She found B.C. to be fluent, articulate, and
thoughtful during the interview portion.
B.C. told Henry that defendant began molesting her when she was 11 years
old, and the last incident was after Christmas of 2009. It began with him touching her breasts and
genital area. Henry noted on her report
that there was also kissing of the genital area. B.C. said defendant first placed his penis in
her vagina when she was 12 years old.
B.C. said this hurt a lot and she bled.
Defendant did this on several other occasions. Defendant told B.C. not to tell or she would
get in trouble.
Henry testified that B.C. had a
“good-sized†V-shaped tear in her hymen that had healed. The tear extended 80 percent of the way to
the base. This indicated a penetrating
injury and the location was consistent with injury from sexual
intercourse. Henry thus concluded that
the physical findings were consistent with the history reported by B.C.
Rodriguez
testified that during a break in defendant’s preliminary hearing, which was
held on April 12, 2011, he observed defense counsel talking to B.C. in the
presence of her mother and sister.
Rodriguez heard counsel say, “‘Sometimes there’s things that you believe
that somebody kind of told you and they’re not true.’†Rodriguez informed Detective Diana Larriva,
who then spoke to B.C. and her mother.
Larriva testified that she also saw
defense counsel speaking to B.C. during a break in defendant’s preliminary
hearing. B.C. was looking at the floor
and her hair was covering her face. As
soon as Rodriguez told Larriva what he had heard, Larriva interrupted and
brought Mrs. C. away from the group.
B.C. followed her mother. Larriva
told Mrs. C. that DCFS was still investigating her and could remove B.C. from
the home if Mrs. C. failed to protect her.
A
transcript of B.C.’s testimony at defendant’s preliminary hearing was admitted
in evidence. She testified that nothing
happened to her before she was 11 years old.
The first time defendant did anything to her he touched her breast and
her “private parts†with his hands, but over her clothes. She testified this happened “once in awhile,â€
“just one time,†and on more than three days, but not more than five days. This happened in her room, at night. Her sister was in the room, but asleep. Defendant told her not to tell anyone. She denied that defendant had ever touched
her with any other part of his body and that he had ever put anything,
including a part of his body, inside her body.
She testified she told the police officer a lot of things that were not
true because she was scared, but she told her teacher the truth. She was not sure whether she told the person
who gave her a medical examination about what happened between her and
defendant, but if she did, she told that person the truth. B.C. admitted telling the police officer
numerous things, including that when she was about nine years old defendant
“began to put his finger inside of [her] vagina.†The prosecutor then asked, “How did he [
your vagina?†B.C. replied, “Not
good.†She then testified that it
hurt. B.C. admitted that her earlier
testimony that defendant never put anything inside her was not true, and
explained that she had testified falsely, “Because like I said, I was
scared. I didn’t know what to say.†B.C. then denied that defendant put his
finger inside her when she was nine years old and stated, “That’s when I was
12.†She added, “When I was nine he
started touching me.â€
B.C.
further testified at the preliminary hearing that the incident she described to
the police officer when she was about 11½ years old, when defendant came into
her room, held her down on the bed, and put his penis in her vagina was
true. She testified that this hurt her and
that defendant used a condom. When asked
if defendant had ever done this again after that occasion, B.C. replied,
“No.†But she then admitted that she
truthfully told the police officer that defendant thereafter had sex with her
approximately two or three times a week.
The last time that defendant did this was “like two days before†B.C.
told her mother what had been going on.
On the last occasion, he did “the same thing,†that is, “the touchingâ€
followed by sex.
B.C.
further testified at the preliminary
hearing that the charges against defendant made her uncomfortable and she
did not want him to go to prison. Her
parents had told her that they did not want defendant to go to prison.
On
cross-examination at the preliminary hearing, B.C. testified that when she told
her sister Maria about what defendant had been doing, she only mentioned that
defendant touched her with his hand over her clothing. B.C. agreed that she did not mention “penises
or bare skin or penetration or anything.â€
Defense counsel asked, “The reason you didn’t tell her any of those
things is because it hadn’t happened; isn’t that true?†B.C. responded, “That did happen.†Defense counsel then asked, with reference to
meeting B.C., “[D]id I tell you what to say or ask you what happened?†She replied, “Both.†Defense counsel asked, “Now, did [defendant]
tell you that if the family found out about what you two were doing it would be
very embarrassing for everybody?†B.C.
replied, “Yeah.†She explained that she
was afraid of defendant, but he had never hit her or said he was going to hit
her. She “was afraid if he might like
hit [her] or kill [her] or something.â€
B.C. testified that when defendant held her down on her bed, she
“screamed,†but it did not wake her sister S., who was sleeping in the same
room. B.C. estimated that the incident
occurred around midnight. Her parents
were at work. B.C. testified that her
statement to “the police lady†that defendant “stuck his penis in [B.C.] two to
three times a week†was true.
Defense
counsel also asked B.C. at the preliminary hearing whether she ever found
herself “remembering things that didn’t, in fact, happen.†B.C. said, “Yes,†and agreed that such
memories felt “real.†On redirect examination, B.C. cited as an example her
belief that defendant would murder her or do something bad to her. The prosecutor asked, “[S]o when you say that
these things that you’re remembering may not have happened, is that because of
the conversation that you had with defense counsel before you came and
testified?†B.C. replied, “Yes.â€
B.C.
further testified on redirect examination at the preliminary hearing that she
told the police officer the truth to the best of her ability, and while she was
talking with the police officer and Detective Larriva she never made up
something that was not true. She also
testified that defendant slapped and punched her, but this was “at a different
time,†not when he was touching her in a sexual manner.
On
recross-examination at the preliminary hearing, B.C. agreed that the police
officer seemed pleased if she answered his questions a certain way and the
police officer “brought up the word ‘penis,’†“‘finger’ or ‘vagina.’†She also agreed that defense counsel told her
“to be careful, to make sure that what [she] remember[ed] actually is a
memory.†Defense counsel asked, “[I]s
there a good chance that everything you’ve testified to is, in my phrase, a
false memory?†B.C. replied, “No,†then
agreed that she thought “all of this†was a true memory. She then testified that defendant began to
threaten her after she told their parents about what he had done to her.
Carrera testified at trial that she
had spoken to B.C. at the preliminary hearing and B.C. said she could not
testify again because it was too confusing and the case was breaking up her
family. B.C. also said she was confused
because her sisters were protecting defendant.
At trial in
late June of 2011, B.C. testified that when she was 12 years old, defendant
began touching her breasts and her vagina with his hands over her clothing when
no one else was home and he had been drinking.
Defendant told her not to tell their parents, but did not threaten
her. She was nonetheless frightened. Thereafter, this type of incident happened
about once a week, usually when her parents were at work. One time, defendant did this to her in her
bedroom when S. was sleeping with their mother.
B.C. told defendant to stop, but he refused. She was going to scream, but he covered her
mouth. The last time defendant touched
B.C. was about a month before she told Maria what defendant had been
doing. B.C. was 13 years old at the time
of the last incident. B.C. steadfastly
denied that defendant had ever engaged in any other type of sexual conduct,
including any penetration or touching her under her clothing.
B.C. testified at trial that Maria
had asked her why she was so close with defendant and acted as if she were
defendant’s wife or girlfriend. B.C.
ultimately told Maria that defendant was touching her. Maria did not ask how defendant was touching
her. She asked B.C. if she was
lying. B.C. asked Maria to tell their
mother, and Maria did so. Maria told their
father, and they called defendant to come home.
When defendant arrived, Maria screamed at him. Defendant acted like he did not know what
they were talking about and became angry.
B.C.’s mother told defendant to leave the house; he left that day and
never returned. B.C. testified that between
the time of her disclosure and the police becoming involved, everyone at her
house acted as if they were “frustrated, stressed out, sad, [and] guilty.â€
B.C. testified that she told
Carrera because Carrera kept asking her what was wrong with her. She told Carrera that defendant was
“bothering†her and had touched her “private part†and her breasts. B.C. denied asking Carrera how a girl got
pregnant and what type of language a boyfriend used with a girlfriend. B.C.’s friend Nancy, who had previously told
B.C. that she had been raped, was with B.C. when she confided in Carrera.
B.C.
initially denied making the statements about defendant’s conduct to which
Rodriguez testified. On
cross-examination she admitted she had made those statements, but insisted they
were not true. She lied to Rodriguez
because it was her first time in a police station and she was scared.
B.C. testified that on May 18,
2010, she and her mother went to a courthouse and obtained a restraining order
against defendant, but she testified that the statements on the application for
the order—including that defendant had been molesting her since she was 10
years old and raping her since she was 12 years old—were false.
B.C. also testified that she did
not tell Davies the truth, and denied making the statements about defendant’s
conduct to which Davies testified.
B.C.
testified that she did not tell the truth during the preliminary hearing
because she was frightened by the way the prosecution team looked at her and
pressured her. She initially denied
testifying at the preliminary hearing that defendant first touched her sexually
when she was 11 years old, but when she resumed her trial testimony after a
recess, she admitted so testifying. She
also admitted testifying that defendant put his finger inside her and it hurt. She nonetheless maintained that her preliminary
hearing testimony was false. But she
said she testified truthfully at the preliminary hearing about telling the
truth to the person who gave her a medical examination.
B.C. testified that about a week
before the trial there was a meeting at her house with herself, Maria, defense
counsel, and the defense investigator in which they read Rodriguez’s police
report to B.C. and talked to her about it.
B.C. told them no one “stuck anything†in her “private parts,†and
defendant only touched her after the family moved to their second house in
Baldwin Park. She also told them,
truthfully, that Rodriguez threatened her with foster care unless she
cooperated. Later she testified that
Rodriguez never said anything about foster care.
B.C.
testified that she wanted everyone in her family to get along and she tried her
best to protect her family and make them happy.
When she reported the molestation, her family was not happy. After defendant was arrested, her family was
sad, and B.C. felt it was partially her fault because he was arrested because
of what she said. B.C. thought about
that a lot and wanted to “fix†it. She
knew that what she said could affect what happened to her family and she wanted
her family to be happy again. Her family
would be happy if defendant got out of jail.
B.C. did not love her brother in 2010 or at the time of trial and she
did not want him to come home. She was
not sure whether she wanted him to get out of jail. B.C. also testified that she did not want to
testify at trial because she was scared of defendant and the angry way he
looked at her in court.
Defendant
was arrested at a rehabilitation facility
and interrogated by Larriva and Sergeant Mark Harvey at the Baldwin Park Police
station on May 19, 2010. Harvey opined
that defendant seemed “withdrawn; continually looking down . . . I felt he
didn’t want to answer a lot of the questions, minimizing,†and “burdened with
guilt.†An audio recording of the
interrogation was played at trial.
Defendant did not respond when Larriva asked if he was having sex with
B.C., but when Larriva asked whether he “knew it was wrong,†defendant replied,
“Yeah, I know it was wrong.†Defendant
admitted he had sex with B.C. once in 2010, when she was 13 years old. He later said B.C. was “gonna be 13†at the
time. He initially said he was asleep on
the couch, B.C. began rubbing her buttocks against him, and he began rubbing
against her. He awoke and regretted
it. He later said he took off his clothes
and B.C.’s clothes and rubbed his penis “onto her vagina skin-on-skin.†He claimed he was impotent and never
penetrated B.C. with his penis.
Defendant later admitted that he had an erection on one occasion when he
interacted with B.C., and she “just went along†with it and touched his
penis. He further admitted that he began
to see B.C. “with wrong eyes†two years earlier. He admitted he “touch[ed] her sexually,†and
this occurred about once a month. He
denied ever touching her breasts or touching her when she was six years old,
but admitted putting his fingers into her vagina once. He later admitted he touched B.C. or had sex
with her once a month for over two years.
He sometimes tried to insert his penis, but failed due to his impotence.
Defendant told the police that B.C.
had told him “it was wrong what [they] were doing,†and “‘you have to stop and
I have to stop.’†He denied threatening
her, but he might have said, “[D]on’t say anything, because then . . .
something bad’s going to happen.†(CT 516-517)~ B.C. just went along with
defendant’s conduct and “just took it.â€
Recordings
of some of defendant’s phone calls from jail to Mrs. C. were played at
trial. In a call on February 23, 2011,
defendant asked his mother whether any witnesses could come to testify that
B.C. was not being truthful and stated, “It would be better if she recanted
too, and said she didn’t know what she was
saying . . . because if she’s [unintelligible] and
everything, there is no rape and all that.â€
He later said, “I have to plead guilty and, and it’s a fucked up mess,
because of what she said.â€
In a call on February 26, 2011,
defendant told his mother, “I’m going to tell the truth to the judge, that I
didn’t penetrate her, I didn’t abuse her sexually when she was 10‑years
old, like she says, that stupid bitch.
[LAUGHS] Really. She’s really crazy, that bitch. She did say that, but you know she’s
[unintelligible], so the evidence is there.
I’m just going to tell the truth.
‘I did disrespect her, I did touch her, but I didn’t penetrate
her.’†He later said, “I don’t want to
spend my whole life in jail . . . just for something stupid like
this, right? That’s what I get for, for
being stupid, right? And now they don’t
. . . well, yeah, I did make a mistake, and I’m very sorry.†Defendant also told his mother that the next
court appearance was the day for him “to plead guilty to some charges, and to
say [unintelligible] I really, I did touch her that way, and not the other way,
you know what I’m saying? I mean, not the
things they’re accusing me of, they’re not true.â€
In a
conversation on March 14, 2011, defendant and his mother talked about Maria
hiring an attorney for defendant.
Defendant said that he was going to plead guilty if the attorney did not
show up. He said that because of
“everything that stupid girl said†and all of the evidence that the prosecution
had against him, his only choice was to plead guilty. He just wanted the attorney’s assistance to
get a shorter sentence. He stated that
he could get a shorter sentence if the charges against him for acts occurring
when B.C. was “a lot younger†were dropped.
Defendant said that when B.C. was 13 years old, “two or three things
happened, but not, not like she said.â€
In a
conversation on March 16, 2011, defendant stated, “Can he get my sentence down
or not? Because the D.A. has a lot of
evidence against me. And she’s the
evidence, she’s the one who keeps saying I, I touched her and this and that,
you know? If she weren’t saying that and
if she wouldn’t show up it’d be a different story for my attorney. So my attorney doesn’t have a lot to defend
me with. The only thing I asked you to
do was to ask him if he could get my sentence down. Because I never threatened her, I never
forced her either, you know? That’s
what’s getting to me, that she’s saying I forced her, you know what I’m
saying?â€
On March 19, 2011, defendant told
his mother that his attorney said he could prevail in the case because B.C. was
a virgin, but defendant was worried about the admissions he had made to the
police. Defendant said that “what I want
to do is admit that, that I did touch her in front.†He declared that “a lot of†what B.C. had
said was “lies.â€
In a
conversation on April 17, 2011 (after defendant’s preliminary hearing), defendant
asked his mother if she received the two letters he sent. His mother said she received one of
them. Defendant responded, “I sent you
another one too, yesterday, so you can give it to her so she can read it.†He continued, “I thought she should read it
so, so she can open her heart, and and so she sees that I’m not
[inaudible].†He continued, “I’m saying,
let her read it so she opens her heart, so she sees that I’m not against her. It’s, it’s a really tough case . . . .†He continued, “You can see that it’s, this
case is really tough, but it’s not that I’m against her, or, or him, but that’s
just the way they are. Right now my
freedom depends a lot on everything she says and the last thing she said doesn’t
help me at all.â€
Mrs. C. testified that defendant
had sent her letters to give to B.C., but she did not give them to B.C. or read
them herself. She testified that when
defendant was in the rehabilitation facility he thought the people who ran it
were trying to kill him. At some point
after he was arrested, defendant went to Patton State Mental Hospital for
treatment that made him a little better.
Mrs. C. testified that she did not believe the statements B.C. made to
Davies. Mrs. C. was always home at
midnight and was a light sleeper; if B.C. had screamed, Mrs. C. would have
awakened.
Maria testified for the
defense. She became suspicious about the
relationship between B.C. and defendant because they spent a lot of time
together and argued frequently. Once, in
late 2009 or early 2010, Maria saw B.C. grab defendant’s crotch while they were
playing. Defendant seemed offended and
told B.C. not to do that. Sometimes B.C.
wanted to stay home with defendant instead of going out with other members of
her family. She leaned on him when they
watched movies together. B.C. became
angry if defendant talked to women or said a woman on television was
pretty. Maria confronted B.C. about her
behavior on March 17, 2010. She asked
B.C. whether defendant touched her. B.C.
said he touched her “on the top and on the bottom.†When Maria asked B.C. where this occurred,
B.C. looked at the couch. B.C. asked
Maria to tell their mother.
Maria did not think the police
should have been called because any touching probably was accidental, she
thought B.C. was lying, and she did not believe defendant raped B.C. He had been impotent for a long time, and S.
was a light sleeper and never reported observing anything that disturbed her.
Maria further testified that
defendant had a history of mental problems, such as hearing voices and
believing that people were going to break in and kill her family. While he was in the rehabilitation facility,
his speech was incoherent at times, and at other times he said the employees
were poisoning his food and trying to kill him.
Blanca
testified that she moved out of the family home in 2007, but moved back in in
2009. (Blanca later referred to
babysitting the various children in the family at her own home in late 2009.) In late 2009 or early 2010, Blanca noticed
that B.C. always wanted to be with defendant.
B.C. became angry when Blanca told defendant about a nice woman she
met. B.C. also laughed at defendant’s
statements even when they were not jokes and not funny. Blanca believed B.C. was lying about
defendant’s actions. B.C. did not have
“a reputation as a particularly honest person.â€
Blanca also testified that defendant believed that the employees of the
rehabilitation facility he went to killed the clients and sold their organs and
were going to do that to him.
Mr. C. testified
that Dawn Henry told him B.C. was a virgin.
He further testified that, at the request of defense counsel, he
examined the door to B.C.’s room in the family’s second Baldwin Park home and
found no damage. The two bedrooms in the
house share a common wall and any sound made in one room could be heard in the
other.
Defendant
testified that he only touched B.C. sexually twice. The first occasion was around Christmas of
2009. B.C. leaned on him while they were
watching television. He was in and out
of sleep. Feeling her against him gave
him an erection and he rubbed against her.
He woke up and realized what he was doing and stopped. The second occasion was in the family’s
second Baldwin Park home in January or February of 2010. B.C. sat next to him on his bed while he was
sleeping. He put his leg around her and
placed his hand on her “private part†for some time. Defendant denied ever penetrating B.C. in any
fashion. He may have inadvertently
touched her breast while hugging her.
B.C. never seemed bothered until she began hanging around with Nancy.
Defendant
testified that he denied touching B.C. when his mother and Maria confronted
him. He invited them to call the police
if they believed he had done anything wrong.
They threw him out of the house.
By the time he was arrested, he was hearing voices and felt like someone
was reading his thoughts and repeating them to him. He was inebriated, confused, and “not in [his]
right state of mind†when the police interrogated him. He told them the story about having sex with
B.C. one time to stop the questioning.
His statements to the police were not true. When he told the police B.C. had her hand on
his penis, he was referring to the incident to which Maria testified. He felt better by the time of trial and no
longer heard voices in his head.
Defense
expert Dr. Mark Costanzo, a professor of psychology at Claremont, testified
that false confessions occur, sometimes due to mental illness, youth, memory
impairment, sleep deprivation, interrogation techniques, a need to protect
someone else, or a belief it was in the confessor’s best interest. Costanzo also testified that children were
susceptible to and compliant with suggestions by an interviewer. Recorded interviews were thus essential.
The trial
court granted defendant’s Penal Code section 1118.1 motion to dismiss count 1,
which charged defendant with committing a forcible lewd act upon a child under
the age of 14 in violation of Penal Code section 288, subdivision (b) during
the period of September 21, 2002, through September 20, 2004, when B.C. would
have been six to seven years old.
(Undesignated statutory references are to the Penal Code.) The jury acquitted defendant of committing a
lewd or lascivious act upon a minor under the age of 14 during the same time
period alleged in count 1. It convicted
defendant of committing a forcible lewd act upon a child under the age of 14 in
violation of section 288, subdivision (b) during the period of September 21,
2007, through March 1, 2008 (when B.C. would have been 11 years old), and
continuous sexual abuse of a child under the age of 14 in violation of section
288.5, subdivision (a) during the period of March 2, 2008, through May 1, 2010
(when B.C. would have been 11 to 13 years old).
The jury could not reach a verdict on count 3, which charged defendant
with oral copulation or sexual penetration of a child 10 years old or younger
in violation of section 288.7, subdivision (b) during the interval of September
21, 2005, through September 21, 2007, when B.C. would have been 9 to 10 years
old. The court declared a mistrial and
later dismissed the charge upon the motion of both parties.
Defendant
filed a motion for a new trial, which the trial court denied, as discussed in
greater detail in the next section. It
sentenced defendant to prison for 18 years, consisting of consecutive middle
terms of 12 years for the continuous sexual abuse conviction and 6 years for
the forcible lewd act conviction.
DISCUSSION
Defendant
filed a motion for a new trial based upon several categories of purportedly
newly discovered evidence and jury misconduct.
Defendant’s contention on appeal is based solely upon his claim of newly
discovered evidence that B.C. “is suffering from mental illness.†Accordingly, we limit our discussion to the
portions of defendant’s motion, the prosecutor’s opposition, and the court’s
remarks that addressed that issue.
Defendant’s new trial motion
included a declaration from B.C., dated September 18, 2011, stating that she began hearing “voices†of her
friend Lucy, who died in early 2010, before she “ever talked to Cynthia the
teacher about my home situation.†Lucy
and the ghost of another little girl had been telling B.C. to kill herself. The other ghost girl carried a bloody knife
and urged B.C. to kill her sisters, her mother, and herself because she was not
“worth it.†The other ghost girl said
“she had been touched and molested†in the same house by her brother and that
she had hanged herself. B.C. stated she
had seen the other ghost girl kill her mother and brother, then hang
herself. The other ghost girl said she
was “going to come get [B.C.]†But B.C.
had also seen an angel, who told her not to kill herself because she “was worth
it†and “had a beautiful family.†This
also occurred before B.C. talked to Cynthia.
The angel told her the other ghost girl was a demon and B.C. should
ignore her. The angel told B.C. that she
would “have a short life and would be a little angel.â€
B.C.’s
declaration further stated that she “was so scared and disturbed by all this,
including†the other ghost girl
and threats by “Child Services†to place her in a foster home that she
“actually tried to hang [herself] last month.â€
She stated she “was placed in BHC Alhambra hospital (On July 27 and
released August 3). I told all this to
the psychiatrists. I was told that I
have to take my medicines to stop seeing things and hearing things. But things are not getting better and the
voices and visions still happen.†B.C.’s
declaration then set forth the names and dosages of four medications. She stated she was again “placed in the
hospital on September 7 for the same reason.â€
B.C. stated she had seen the other ghost girl “yesterday,†and concluded
by stating, “As I dictate this the little ghost girl is whispering in my ear
and telling me that she is going to my sisters [sic] house.â€
B.C. also
stated in her declaration, “I feel bad about my brother being in jail and feel
it is my fault. I would like him
released as soon as possible. I am not
afraid of him but it would be uncomfortable to be living in same [
not afraid now, but I do not want to talk to him or see him.â€
B.C.’s
declaration did not state that her prior statements and testimony regarding
defendant’s conduct were false, exaggerated, or in any way inaccurate.
Defendant’s
motion also included a declaration from Mrs. C. that stated that B.C. became
depressed after defendant went into “rehab,†but now Mrs. C. realized that B.C.
“is suffering from mental
illness as well. More pressure was
put on her after the trial by Child Protective Services who apparently
threatened to put her in foster care.
She reacted very badly to those threats.
She was having conversations with people who are dead and tried to kill
herself a couple of months ago and we had to put her in a psychiatric
facility. She was released to us and is
taking some psychiatric medicines.â€
Defendant’s
motion also included a declaration from Maria that stated, “Since the trial I
have learned that my sister has been hearing voices and suffers from a mental
condition probably similar to [defendant’s].
She was talking to people who were deceased and hallucinating and having
visions., [sic] some of them
religious but I suspect it is a product of mental illness. I do not trust her to remember anything
important or to distinguish between what really happened and what merely
happened in her delusions or dreams. She
has tried to kill herself last month.
She told me that the voice was telling her that she either needed to
kill someone else or to kill herself because the voice wanted her to come join
her. She has since then been placed I n
[sic] a psychiatric hospital and been
placed on psych meds. I believe that the
mental condition existed prior to her making any claims about [defendant].â€
The
prosecutor filed a written opposition to the new trial motion to which she
attached reports of two investigations into defendant’s conduct toward B.C. by
the DCFS commencing in May 2010 and resumed in June 2011. Those reports indicated that in May 2010 DCFS
had been contacted by both Carrera and B.C.’s psychologist, Erin Hubbard,
regarding sexual abuse by defendant.
DCFS spoke to Hubbard again on July 30, 2010, and she stated she did
“not have any other concerns for the children being allowed to remain in the
care of the mother,†would continue to work with B.C. in therapy, and would
provide referrals to B.C. and the family “for additional mental health services
if the need arise[s].†DCFS spoke to
Hubbard again on August 10, 2010, regarding the department’s concern about
whether there had been other sexual abuse incidents in the family. Hubbard said she would explore the issue in
therapy and “assist the child and the family to work through it in
therapy.†On August 30, 2010, a DCFS
employee interviewed B.C., who said she was continuing to see Hubbard for
counseling once a week, she was making progress in counseling, and Hubbard was
working with her on ways to control her stress.
On June 22,
2011, after B.C. had begun testifying at trial but before she completed her
testimony, a DCFS employee interviewed her again in response to concerns
expressed by Larriva about the family influencing B.C.’s testimony. B.C. told the DCFS employee that there was no
mental illness in her family, and stated she went to therapy once a week to
address past sexual abuse by her brother.
She stated Larriva was threatening to put her in a foster home if she
told the truth. She further stated the
police wanted her to testify to details she did not remember and believed were
exaggerated. The employee interviewed
Mrs. C. the same day. She “denied any
mental illness in the family or home†and stated “that the entire family was
currently in therapy†due to defendant’s sexual abuse of B.C.
The DCFS
report also stated that B.C. “was hospitalized on 7/26/2011 for hallucinations
for a 72 hour hold. According to the
child’s therapist Dr. Hubbard she believed the hallucinations were brought on
by stress caused by the child testifying in court to sexual abuse and the
current DCFS investigation. The child
was released on 7/28/2011.†The report
later memorialized a conversation with Hubbard on July 29, 2011: “Dr. Hubbard confirmed that the child is
currently attending counseling and stated that she is very consistent with
coming to counseling once a week. She
stated that she has been working with [B.C.] for almost 2 years. According to Dr. Hubbard, the child, [B.C.,]
continues to be re-traumatized due to the criminal proceeding. Further, she stated that the child has been
through an ‘incredible amount of stress’ in the last 2 years and Dr. Hubbard
was very concerned with the amount of stress the child had been undergoing due
to the trial and now DCFS investigation.
Dr. Hubbard reported that the child was hospitalized on Tuesday,
7/26/2011, after completing a visit with social workers at DCFS office.
. . . No other concerns were
noted by Dr. Hubbard.â€
In arguing
his motion for a new trial, defense counsel stated, “I asked the family to
please get her a psychiatrist because I did not trust any psychiatrist that was
working within the Department of Family [sic]
Services because they’re in kahoots [sic]
with the District Attorney’s Office and I think they have an agenda and I think
that the statement that was finally disclosed in the People’s opposition which
is from DCFS shows that the psychiatrist, Erin Hubbard, I think she is not
being clear or is not being very knowledgeable about her own patient and we
have [B.C.’s] declaration about the psych meds she’s on and we don’t have Erin
Hubbard mentioning anything about that. . . . I asked the family, I pleaded with them,
begged the family to send her to a good psychiatrist.†Defense counsel continued, “[W]e now know the
extent of the hallucinations and better flavor of the mental illness.â€
In denying
the motion for a new trial the trial court explained, “Insofar as the new trial
motion is based upon a request for an additional expert witness regarding false
confessions and I guess also the victim’s alleged hallucinations and
fabrications of these incidents, Dr. Costanzo did testify at trial. He testified about false confessions. He also testified about the suggestability [
believe there was also direct testimony from various witnesses that [B.C.] was
having trouble at school, that she was not I guess for lack of a better way to
phrase it one of the top students in her class, that she may have had problems
with her intellect and her ability to communicate. I think that was fairly presented to the jury
that she was not—I’m trying to word this in an artful manner—that she was not
the brightest child, the brightest victim that could have testified in a case
such as this, but she had certain learning disabilities. Her teacher, Ms. Carrera said she was in a
remedial class. Her issue, her mental
capacity, her suggestability [sic] to
fabricating was ad[e]quately covered by other evidence in this case.
“Also, to
the extent that there should have been additional testimony regarding her
hallucinations or her mental illness, first of all, as indicated by the DCFS
report submitted by [the prosecutor] in support of her opposition, that
occurred after the trial. The
psychiatrist opined that it was a result of the stress of having attended the
trial and so since it occurred after the trial, to me it’s not relevant to any
issue prior to trial or testimony at trial.
However, to the extent it might be considered as corroborative of prior
instances of mental illness, again, I think that the issue of her mental
capacity and the possible suggestability [sic]
of a child witness was fairly presented to the jury. [¶] I
also think again that this is also evidence that could have been presented had
due diligence been exercised by the defense.
There has been no showing by the defense that it could not have been
presented had due diligence been exercised . . . .â€
Defendant contends that the
trial court abused its discretion by denying his motion with respect to newly
discovered evidence of B.C.’s mental illness, and the denial violated due
process.
A motion
for a new trial may be based upon newly discovered material evidence that could
not, with reasonable diligence, have been discovered and produced at trial. (§ 1181,
subd. 8.) The evidence, and not just its
materiality, must be newly discovered, and it should not merely be
cumulative. (People v.
as well as the materiality, of the new evidence in determining whether
introduction of the evidence in a new trial would render a different result
reasonably probable. (
The “trial
court may grant a motion for new trial only if the defendant demonstrates
reversible error.†(People v. Guerra (2006) 37 Cal.4th 1067, 1159, overruled on another
point by People v. Rundle (2008) 43 Cal.4th 76, 151.) The
determination of a motion for a new trial rests so completely within the trial court’s
discretion that its ruling will not be disturbed on appeal absent a manifest
and unmistakable abuse of discretion. (
The trial
court did not abuse its discretion in concluding that B.C.’s purported delusions
arose after the trial. B.C. had been in
therapy with Dr. Hubbard since at least May of 2010, and neither Hubbard nor
any member of B.C.’s family ever suggested B.C. was delusional or otherwise
mentally ill until about a month after B.C. completed her testimony in the
trial (on June 28, 2011) and more than three weeks after defendant had been
convicted of two charges. Dr. Hubbard
opined that the hallucinations that had led to B.C.’s two-day hospitalization
beginning July 26, 2011, were caused by stress and “re-traumatiz[ation]â€
resulting from having to testify at defendant’s trial and the reopening of the
DCFS investigation. Indeed, the DCFS
report indicates that B.C.’s visit to the DCFS office precipitated her
hospitalization. No one who interviewed
B.C. and no one in her family testified that she seemed delusional. B.C.’s own testimony provided no ground for
believing her to be delusional, and the trial court was able to observe her
demeanor over the course of the five days that she testified. Only B.C.’s declaration tended to show that
her hallucinations had begun prior to July of 2011, and it reflected a
significant exaggeration about the duration of B.C.’s hospitalization (seven
days, according to B.C., versus two days, according to Dr. Hubbard). B.C.’s declaration also reflected her desire
to help free defendant from jail. The
trial court was entitled to credit Dr. Hubbard’s professional opinion and to
conclude that B.C.’s declaration was, at the very least, exaggerated, and
perhaps the product of her suggestibility, susceptibility to pressure by her
family, or her own desire to “fix†the sadness in her family caused by
defendant being incarcerated, as she described in her trial testimony.
Alternatively,
if B.C.’s delusions predated her statements exposing defendant’s sexual abuse
and her testimony at the preliminary hearing and trial, the trial court did not
abuse its discretion by concluding that the evidence was not newly discovered,
and it could, with reasonable diligence, have been discovered and produced at
trial. This is illustrated by defense
counsel’s argument at the hearing on the new trial motion that he begged and
pleaded with the family to send B.C. to
that (1) B.C. had fabricated most of her allegations and exaggerated the
conduct defendant admitted in his trial testimony, and (2) defendant was
mentally ill when he was interrogated by the police. B.C.’s purported mental illness was
completely compatible with both of these theories, and if counsel was begging
B.C.’s family to have her see “a good psychiatrist,†it is reasonable to infer
that counsel suspected and hoped to develop evidence that would tend to show
that B.C. was mentally ill. Counsel did
not provide a declaration or testimony in support of the new trial motion
addressing why B.C.’s purported mental illness could not, with reasonable
diligence, have been discovered and produced at trial.
In addition,
in light of the forensic evidence presented by Dawn Henry, defendant’s
admissions to the police, his admissions to his mother in his phone calls from
jail, his admissions in his trial testimony, and the consciousness of guilt
reflected in his statements during jail phone calls about the desirability of
B.C. recanting or not testifying, it is not reasonably probable that
introduction of B.C.’s testimony regarding delusions and her post-trial
hospitalization in a new trial would
render a different result reasonably probable.
Such new testimony would no doubt be rebutted by evidence tending to
show that the delusions arose only after trial and resulted from the stress of
testifying at the trial and the reopening of the DCFS investigation. Defendant cites the trial court’s dismissal
of count 1 and the jury’s inability to reach a verdict on count 3, with 11
jurors favoring a not guilty verdict, in support of his contention that a
different result would have been reasonably probable after a new trial. But counts 1 through 3, of which defendant was
not convicted, alleged crimes committed when B.C. was under the age of 11, as
to which even B.C.’s pretrial statements conflicted; counts 4 and 5, of which
defendant was convicted, alleged crimes committed against B.C. when she was 11
to 13 years old, as to which B.C.’s pretrial statements and preliminary hearing
testimony were fairly consistent. Count
5, continuous sexual abuse, was further supported by defendant’s admissions to
the police. Accordingly, the disposition
of counts 1 and 3 has no tendency to establish the likelihood of a different
result following a new trial. We need
not separately address defendant’s claim that denial of the motion violated due
process, which appears to be coextensive with his state law claim. His failure to establish prejudice would
require rejection of that claim, as well.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We
concur:
ROTHSCHILD, J.
CHANEY,
J.
