P. v. Ramos
Filed 6/20/13 P. v. Ramos CA2/4
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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSE
R. RAMOS,
Defendant and Appellant.
B240682
(Los Angeles County
Super. Ct. No. BA372152)
APPEAL from a judgment of the Superior
Court for Los
Angeles County, Frederick N. Wapner, Judge.
Affirmed.
Richard A. Levy, 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, Assistant
Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys
General, for Plaintiff and Respondent.
Defendant Jose R. Ramos appeals from a
judgment sentencing him to 24 years in prison after a jury found him guilty of
nine counts of lewd act upon a child under the age of 14. (Pen. Code,
§ 288, subd. (a).) He contends the
trial court (1) gave an erroneous instruction to the jury on evaluating
witness demeanor; (2) erred by allowing evidence regarding the victim’s
disclosure of the abuse; (3) erred by failing to instruct on attempted
lewd conduct and on battery as lesser included offenses; and (4) abused its
discretion by denying defendant’s motion for a new trial. He also contends that (1) his trial counsel
was ineffective in failing to request a limiting instruction for the testimony
regarding the victim’s disclosure of the abuse; (2) the prosecutor committed
misconduct by injecting a purported fact outside the record during closing
argument and by asking inflammatory and irrelevant questions during defendant’s
cross-examination; and (3) there was insufficient evidence to support the
conviction on one of the counts. We
affirm the judgment.
BACKGROUND
Tanya G. was born in November
1993. When she was five or six years
old, she, her mother, and her sister Kathy began living with defendant, her
stepfather.
Shortly thereafter, defendant began to
come into Tanya’s bedroom early in the morning when everyone else was
asleep. He would pick her up and take
her into the living room, where he would put his hands under her pajamas and
underwear, put his fingers in her vagina, and move them up and down. After a while, he would pick her back up and
put her in her bed. He did this several
times a week (although he sometimes skipped a week) for about a year.
Sometime later, defendant began to
digitally penetrate Tanya when they were alone in the car. In one specific instance when Tanya was in
fourth grade, defendant told Tanya to come with him to Home Depot. Before she got into the car, Tanya put on a
pair of jeans that were hard to get into, to try to prevent defendant from
touching her. When they were stopped at
a traffic light, defendant tried to put his hand down her pants, but Tanya
crossed her legs to make it harder. She
saw a bicyclist approaching the car, and told defendant that she was going to
yell at the cyclist if he kept trying.
Defendant laughed, and used both hands to get into her pants and
underwear, and put his fingers in her vagina.
Defendant did this on at least five to ten occasions, both before and
after the Home Depot incident; he stopped before Tanya became a teenager.
When Tanya was nine or ten, defendant
began to have sexual intercourse with her.
The first time, defendant took Tanya into her room when no one else was
home. He put her on the floor, pulled
down her pants and underwear, and had sexual intercourse. When he got up, he tried to hide his penis. When he realized Tanya saw it, he said “Ay
caray,†and laughed. He pulled up his
pants, pulled up Tanya’s underwear and pants, and walked out of the room. Later, he called her over to the tool shed in
the back of the house. He told her that
it should not have happened and that they should pray about it.
Another time, Tanya was passing by
defendant’s bedroom while defendant was coming out or going in. Defendant told her that he would give her a
set of nail polishes if she would go into the room with him. She just stood there, but defendant pulled
her in. He put her on the end of his bed
and took off her pants and underwear, then pulled down his pants and underwear
and had sexual intercourse. When it was
over, he put her pants and underwear back on and she walked out while he sat down
against the wall.
The next incident occurred when
Tanya’s younger brother was in the house; he was three to five years old.
told Tanya to come into the room. When
she hesitated, he said it would only be for two seconds. She told him she would scream if was more
than two seconds. They went into the
room, and defendant locked the door. He
put her on the edge of the bed, took off her pants and underwear, and had sexual
intercourse. Then he lifted her shirt
and put his mouth on her breasts, and then on her vagina.
During this last incident, and many
other times beginning when Tanya was eight or nine, defendant kissed Tanya on
the mouth and forced his tongue into her mouth.
If he caught her wiping her mouth afterward, he would do it again and
again until she stopped wiping her mouth.
In another incident of sexual
intercourse that occurred when Tanya was 10 or 11, Tanya was alone in the house
with defendant at night. She went into
her bedroom to go to sleep while defendant was watching television. Defendant asked her if she was cold. She did not respond, and pretended to be
asleep. Defendant went upstairs to her
bedroom, lay down on the bed next to her, and began to rub her vagina, breasts,
and stomach. He then took off all of her
clothes and his clothes, put her on top of him with his penis inside her, and
moved her body against him while kissing and touching her everywhere. When he was finished, he put her clothes back
on and went downstairs.
Defendant had sexual intercourse with
Tanya two or three more times before Tanya and her sister Kathy went to live
with their father in Indio in 2007, when Tanya was in eighth grade. She lived with her father for two years,
during eighth and ninth grades, and visited her mother and half-siblings during
the summers. During one of those
summers, defendant tried to hug Tanya by picking her up and dragging her body
down his body; it made her feel uncomfortable because she “felt like it was
going to lead to something more because I knew it wasn’t just a hug.â€
At some point after she had moved back
in with her mother and defendant, Tanya overheard her younger sisters arguing
about who was going to ask defendant to get them some doughnuts. After some back and forth, she heard E.R. say
to M.R. that she was not going to ask “because [then] he’s going to touch
me.†Until this time, Tanya had not told
anyone about defendant’s conduct with her because she did not want it to ruin
her family, but hearing E.R.’s comment was a “turning point†for her, because
she did not want anyone to go through what she had gone through.
In the spring of 2010, Tanya was
participating in a program with a church youth group, during which she revealed
that she had secret and asked the group to pray for her. The following Friday, Lamar Bass, a member of
the group who was training to be a leader/mentor, saw Tanya in the prayer room,
crying. Bass sat down with her, trying
to calm her. Tanya revealed to him that
she had been sexually molested by her stepfather, and she thought he was doing
the same thing to her little sister. He
told her she should tell her mother, but she refused; she was worried that it
would break up her family. He asked her
to talk to two youth leaders, Helen Carrillo and Tiffany Mariani, and Tanya
promised that she would.
Tanya did not talk to either leader
that day, but sometime shortly thereafter Carrillo, who was one of Tanya’s
“accountability partners,†met with Tanya for one of their regular
accountability meetings. During the meeting,
Tanya kept alluding to her secret and was very emotional, on the verge of
tears. Tanya would not say what the
secret was, so Carrillo started asking her questions. When she asked Tanya if she was in danger,
Tanya said that danger was not the word she would use. Carrillo then asked Tanya a series of
yes-or-no questions: whether someone was
hurting her, whether it was physical, whether she was being physically abused
at home, and whether it was her stepfather.
Tanya answered yes to all of the questions.
Tanya also spoke to Mariani at around
the same time. Mariani approached Tanya
one night when she was crying at the end of a service. Mariani asked Tanya what was going on. Although Tanya did not say anything, Mariani
seemed to know, and asked if she was being sexually molested, and whether it
had progressed to rape. Tanya answered
Mariani’s questions. Mariani told her
they needed to do something, and she made a plan to accompany Tanya on a
certain date to tell Tanya’s mother about the molestation.
Before that date, however, Tanya’s
sister Kathy overheard Tanya talking to a friend who had gone through a similar
situation. Kathy heard Tanya tell her
friend that her stepfather had been touching her and she needed to tell someone. The next day, Kathy told a teacher at school
that her stepfather was touching one of her siblings.
office, and the police were called.
Following an investigation by the
police, defendant was charged by information with 11 counts of lewd act upon a
child (§ 288, subd. (a)); nine counts related to Tanya,
and two counts related to two incidents involving
E.R.
under section 1203.066, subdivision (a)(8), that defendant had substantial
sexual contact with a victim (Tanya) who was under the age of 14, and that
defendant had committed an offense specified in section 667.61, subdivision
(c), against more than one victim within the meaning of sections 667.61,
subdivision (b), and 1203.066, subdivision (a)(7).
At trial, defendant testified that he
never engaged in any inappropriate touching or sexual relations with
Tanya. He said that Tanya was jealous of
the time he spent with the younger children and resented having to do chores
around the house. He also testified that
he and Tanya had issues about the way she dressed – he thought she dressed too
provocatively – and that Tanya told him she wanted her mother to divorce him.
In addition to his own testimony,
defendant presented testimony from a forensic psychologist, Ronald R.
Fairbanks, who administered several tests to defendant and offered his opinion
that defendant is more unlike a child molester than like a child molester. Finally, defendant presented testimony from
several people who knew him and attested to his good character.
In closing argument, the prosecutor
provided suggestions as to which incidents that Tanya described could be used
by the jury to convict defendant as to each count. She suggested the jury rely on the first
incident Tanya described, where defendant picked her up, carried her into the
living room, and put his fingers into her vagina, to convict defendant on count
1. She noted that Tanya testified that
defendant had done this three to five times per week, and told the jury it
could use one of those times to convict defendant on count 2. She pointed to the Home Depot incident for
count 3, and noted the jury could convict on count 4 based upon Tanya’s
testimony that there were at least five similar incidents in the car. For counts 5, 6, and 7, the prosecutor
referred to the first three instances of sexual intercourse Tanya
described. For counts 8 and 9, she
explained that the jury could rely upon Tanya’s testimony that, during at least
one instance of sexual intercourse, defendant also kissed her breast and
vagina. She also said that count 9 could
be based upon the last incident of sexual intercourse that Tanya described
(when Tanya pretended to be asleep). The
prosecutor told the jury that it did not have to choose the acts that she
suggested for each count, noting that Tanya had testified to multiple acts of
kissing, oral copulation, and sexual intercourse, any of which the jury could
choose for any of the counts as long as all of the jurors agreed on acts.
suggested that the jury could base a conviction for one of the counts on the
sexual hug that occurred when Tanya was living with her father and visited
during the summer.
The jury found defendant guilty on all
nine counts related to Tanya, but could not reach a unanimous verdict as to the
counts related to E.R. The jury also
found not true the special allegation that defendant committed an offense
against more than one victim. Defendant
moved for a new trial. The trial court
denied the motion and sentenced defendant to the high term of eight years on
count 1, and two consecutive years on each of the remaining eight counts, for a
total of 24 years. Defendant timely
filed a notice of appeal from the judgment.
A. Instruction
on Credibility of Witnesses
After the jury was selected, the court
addressed the jurors about the role of the jury in the trial, which it had
alluded to during jury selection. The
court reminded the jurors that it had said jurors acted as impartial judges of
the facts, and told them that they would do this by determining the credibility
of the witnesses.
The court explained that as jurors,
they would “judge the facts by figuring out which witnesses you believe, and
which witnesses you don’t and how much weight or significance to attach to the
testimony of each witness, and that you don’t have to believe all the witnesses
the same; but that you have to use the same rules for each witness.†The court noted that the rules would be in a
jury instruction it would read to them at the end of the case, but said it was
“going to talk to you about them now and give you some examples so that as you
listen to the witnesses testify, you’ll have some idea of the kinds of things
that you ought to be looking for.â€
The court continued: “It’s not magic. It’s common sense. You do it every day, you just don’t think
about it. So when you talk to somebody,
and they’re very serious about what they’re saying, that’s how you take
it. And if they’re very flip about what
they’re saying, that’s how you take it.
And it’s the same with witnesses in this case. [¶]
When you talk to someone, and the longer you talk, the more nervous they
get. And they won’t stand still; and
they won’t look [you in] the eye; and pretty soon there’s sweat pouring off
them. Now you understand that this is a
gross exaggeration, but you get the idea.
And if they stand still; they look you straight in the eye; and they say
something with a firm clear voice, that gives you a very different idea of
whether they’re telling the truth or not.
And it’s the same with witnesses in this case. [¶]
Assume they do look you in the eye.
And you look right back at them.
You don’t say anything, but you think to yourself, that’s not true. I wasn’t born yesterday. And you’re gonna doubt that statement and
everything else they say. And it’s the
same with witnesses in this case.â€
Defendant contends on appeal that the
court committed error by instructing the jury in this manner. He argues that the instruction “improperly
singled out specific aspects as factors that the jurors should find
significant, thereby implying that other factors were less significant,â€
contrary to the holdings of People v.
Dail (1943) 22 Cal.2d 642, Carlston
v. Shenson (1941) 47 Cal.App.2d 52, and Fries
v. American Lead Pencil Co. (1904) 141 Cal. 610. He argues that the more significant error,
however, is that the court “made clear†that nervousness, fidgeting, and gaze
aversion showed deceit, while the absence of those traits showed truthfulness.
We disagree with defendant’s
characterization of the court’s comments.
The court did not “single out†factors that the jury should find
significant. The court simply instructed
the jurors to evaluate the witnesses’ demeanor in the same manner they evaluate
other people’s demeanor in their everyday lives. And contrary to defendant’s assertion, the
court did not “make clear†that nervousness, fidgeting, and gaze aversion
showed deceit, while the absence of those traits showed truthfulness. Indeed, in a portion of the court’s
discussion that defendant omitted from his appellant’s opening brief, the court
used as an example of how a juror should assess a witness’ credibility just as
he or she would assess a person’s demeanor generally, a situation in which the
juror does not believe a person even though that person looks the juror
directly in the eye.
In any event, the court properly
instructed the jury with CALCRIM No. 226 before deliberations began,
specifically noting that this instruction was the one it had referred to
earlier. While the court was reading the
instructions to the jury, it paused when it reached CALCRIM No. 226 and
said: “Before we started the testimony,
after we got the jury picked, I talked to you about the factors you could
consider in evaluating a witness’ credibility, and I gave you some examples;
and I said that when the case was over, I would read you a jury instruction
that had those factors in this. So this
is the instruction I was talking about.â€
The court proceeded to read the pattern instruction. That instruction correctly tells the jurors,
as the trial court did earlier, to use their common sense and experience in
deciding whether a witness’ testimony is true and accurate, and provides some
factors the jurors may consider, including the witness’ behavior while
testifying. We find no error in the
trial court’s pretrial instructions.
B. Admissibility
of Evidence of Tanya’s Disclosure of Abuse
Defendant contends the trial court
committed prejudicial error by admitting the testimony of Bass and Carrillo,
from the church youth group, regarding Tanya’s disclosure of defendant’s
abuse. He argues that this testimony did
not have any “specific relevance†to a contested issue, since those disclosures
did not trigger the police investigation, and therefore the testimony was
inadmissible hearsay. We disagree.
In People
v. Brown (1994) 8 Cal.4th 746 (Brown),
the Supreme Court examined the history of the “fresh-complaint doctrine,†which
allowed the admission of evidence that a victim of a sexual offense had made a
complaint of the injury. Under the
doctrine, the evidence was admitted “only for a nonhearsay purpose, i.e., not
to prove the truth of the content of the victim’s statement but, rather, simply
to show that a prompt complaint was made.â€
(Id. at p. 755.) The justification for admission of the
evidence was that “‘[i]t is natural to expect that the victim of a crime would
complain of it, and the prosecution can show the fact of complaint to forestall
the assumption that none was made and that therefore the offense did not
occur.’†(Id. at p. 756.) Although the
Court found that this justification has been discredited, it nevertheless
concluded that “so long as the evidence in question is admitted for the
circumstances under which the victim reported the offense to others, such
evidence ordinarily would be relevant under
generally applicable rules of evidence, and therefore admissible, so long
as its probative value outweighs its prejudicial effect. (Evid. Code, § 352.)†(Id.
at pp. 759-760.) The Court noted,
however, that “[t]he specific relevance of the extrajudicial-complaint evidence
. . . must be shown in every case.†(
In this case, defendant argues that
Tanya’s disclosures to Bass and Carrillo were not relevant because they “had
nothing to do with the chain of events, such as how the police got
involved.†Defendant takes too narrow a
view of relevance. This case came down
to Tanya’s credibility. There was no
physical evidence of sexual abuse, no witnesses to the abuse, and defendant
denied ever touching Tanya inappropriately.
In addition, the alleged abuse had gone on for many years, and there was
a significant delay between the last instance of abuse and the first time Tanya
ever told anyone about it. As the
Supreme Court explained in Brown,
“when the victim of an alleged sexual offense did not make a prompt complaint
but instead disclosed the alleged incident only some time later, evidence of
the fact and circumstances surrounding the delayed complaint . . . may be
relevant to the jury’s evaluation of the likelihood that the offense did or did
not occur. In the absence of evidence of
the circumstances under which the victim ultimately reported the commission of
an alleged offense, the jury in many instances may be left with an incomplete
or inaccurate view of all the pertinent facts.â€
(Brown, supra, 8 Cal.4th at p. 761.)
Here, Bass’ and Carrillo’s description
of the circumstances surrounding Tanya’s disclosures to them -- how distraught
she was, her reticence in telling them (or her mother) about the abuse, and her
expression of concern about what would happen to her family as a result of her
disclosure -- were relevant not only to explain the reasons for her delay in
disclosing the abuse, but also to the jury’s evaluation of the credibility of
both her testimony and defendant’s testimony suggesting that Tanya made up the
accusations because she was angry or jealous.
Moreover, Bass’ and Carrillo’s testimony did not include any details
about the alleged abuse itself; it was limited to Tanya’s emotional state and
the fact that she had disclosed to them that her stepfather had sexually abused
her. Thus, it complied with the Supreme
Court’s directive that, “in light of the narrow purpose of its admission,
evidence of the victim’s report or disclosure of the alleged offense should be
limited to the fact of the making of the complaint and other circumstances
material to this limited purpose.†(
Defendant’s assertion that the
testimony was inadmissible precisely because it focused in large part on
Tanya’s demeanor simply is wrong. The
testimony about Tanya’s demeanor was not hearsay. It was testimony about the witnesses’
observations rather than about Tanya’s out-of-court statements. That Tanya’s distraught state and hesitancy
to tell Bass or Carrillo about the abuse may tend to enhance Tanya’s
credibility as to the truth of her accusations against defendant does not
render the testimony about the fact of her disclosure and her demeanor
inadmissible.
Nor does the fact that the testimony
focused on Tanya’s emotional state render it inadmissible under Evidence Code
section 352 as more prejudicial than probative, as defendant contends. “‘Evidence is substantially more prejudicial
than probative . . . [only] if, broadly stated, it poses an intolerable “risk
to the fairness of the proceedings or the reliability of the outcomeâ€
[citation].’ [Citation.] ‘“The prejudice which . . . Evidence Code
section 352 is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence.†[Citations.]
“Rather, the statute uses the word in its etymological sense of
‘prejudging’ a person or cause on the basis of extraneous factors.â€â€™ [Citations.]â€
(People v. Eubanks (2011) 53
Cal.4th 110, 144.) “‘The admission of
relevant evidence will not offend due process unless the evidence is so
prejudicial as to render the defendant’s trial fundamentally unfair.’†(People
v. Jablonski (2006) 37 Cal.4th 774, 805.)
Here, the evidence of the circumstances of Tanya’s disclosures to Bass
and Carrillo was relevant to explain the reasons for her delay in reporting the
abuse, and her emotional state in particular was highly probative because it
tended to contradict defendant’s suggestion that Tanya made up the accusations
against him because she resented having to do chores or was jealous of the time
he spent with her younger siblings. The
fact that this evidence might have had a powerful impact on the jury (or the
trial court) in assessing Tanya’s and defendant’s credibility does not mean it
was prejudicial within the meaning of Evidence Code section 352. In short, the trial court did not abuse its
discretion in admitting Bass’ and Carrillo’s testimony. (People
v. Jablonski, supra, 37 Cal.4th
at p. 805 [trial court’s ruling on admissibility of evidence is reviewed for
abuse of discretion].)
C. Ineffective
Assistance of Counsel
When evidence of a victim’s
extrajudicial complaint has been admitted, counsel may request that the trial
court instruct the jury as to the limited purpose for which the hearsay
evidence was admitted. Absent such a request,
the court is not required to give the instruction. (Brown,
supra, 8 Cal.4th at p. 757.) In the instant case, defense counsel did not
request a limiting instruction. On
appeal, defendant contends his counsel provided ineffective assistance by
failing to request the instruction.
“There are two components to an
ineffective assistance of counsel claim:
deficient performance of counsel and prejudice to the [defendant]. Strickland
v. Washington (1984) 466 U.S. 668, 697, informs us that ‘there is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.
In particular, a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. The
object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.’†(In re
Cox (2003) 30 Cal.4th 974, 1019-1020.)
We conclude that defendant has not established he was prejudiced by his
counsel’s failure to request a limiting instruction.
Defendant argues his counsel’s failure
to request the limiting instruction was prejudicial for the same reason he
contends Bass’ and Carrillo’s testimony should have been excluded in the first
place: because the evidence of Tanya’s
demeanor when she disclosed the abuse to Bass and Carrillo tended to enhance
her credibility. But this argument
ignores that the hearsay for which a
limiting instruction may have been appropriate was Tanya’s statements to Bass
and Carrillo that defendant had sexually abused her. Given that Tanya testified in detail about
defendant’s sexual abuse of her, it is not reasonably probable that a different
result would have been reached had the jury been instructed that it could not consider
Tanya’s statements to Bass and Carrillo for their truth. (People
v. Manning (2008) 165 Cal.App.4th 870, 880-881 [failure to give limiting
instruction is harmless error where victim testified at trial].) Therefore, defendant was not prejudiced by
his trial counsel’s failure to request a limiting instruction.
D.
Defendant contends the prosecutor
committed prejudicial misconduct by “inject[ing] a purported fact that [was]
not in evidence†during closing argument and asking inflammatory and irrelevant
questions during defendant’s cross-examination.
We disagree with defendant’s characterization of the prosecutor’s
comment during closing argument, and find that the prosecutor’s questions do
not rise to the level of misconduct.
During closing argument, the prosecutor
told the jury that the opinion offered by defendant’s expert witness, forensic
psychologist Ronald R. Fairbanks, that defendant is more unlike a child
molester than like a child molester was “meaningless.†The prosecutor continued: “Did you notice that he didn’t actually tell
you what the profile of a child molester is?
Well, what is it? If he isn’t, if
he doesn’t fit the profile, what is the profile? What is it?
[¶] And ladies and gentlemen, the
bottom line is that there isn’t one.
Because they come from all walks of life. They’re married; they’re single; they’re
different occupations. I mean, all you
have to do is turn on the news:
Teachers. Read the paper: neighbors, priests, all walks of life, ladies
and gentlemen. [¶] When you watch the news . . . and there’s
some story about so and so has been arrested or convicted or whatever for being
a child molester, who of the people interviewed said, I knew it? Everyone.
Neighbors, the friends: I had no
idea. Oh, my god. He seemed like -- he or she seemed like such
a nice person. It’s totally
unbelievable. We trusted him or
her. [¶]
That’s because, ladies and gentlemen, there isn’t a profile. Because child molesters, they have to pretend
to be a certain person.â€
On appeal, defendant contends this
statement was improper because the prosecutor did not present any expert
testimony or other evidence that there is no such thing as a profile of a child
molester, and therefore the prosecutor improperly referred to facts outside the
record. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1026 [“A prosecutor
commits misconduct by referring in argument to matters outside the
recordâ€].) Read in context, however,
what the prosecutor appears to be saying is that there is no one “profile†into
which all child molesters will fit -- a fact that the prosecutor elicited in
her cross-examination of Dr. Fairbanks, who conceded that some child molesters
may not fit the typical profile. There
was no misconduct here. (
526 [“We review prosecutorial remarks to determine whether there is a
‘reasonable likelihood’ that the jury misconstrued or misapplied the
prosecutor’s remarksâ€].)
With regard to the prosecutor’s
cross-examination of defendant, defendant points to a handful of questions
asked by the prosecutor that he argues had no purpose other than to inflame the
jury. While we agree that one of the
questions was entirely inappropriate -- the prosecutor’s final question to
defendant: “Did you think about Tanya
while you were having sex with your wife?†-- the remaining few questions about
which defendant complains were not so objectionable as to give rise to a claim
of prosecutorial misconduct.
“‘“A prosecutor’s . . . intemperate
behavior violates the federal Constitution when it comprises a pattern of
conduct ‘so egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.Չۉ۪
[Citations.] Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘“‘the use of
deceptive or reprehensible methods to attempt to persuade either the court or
the jury.’â€â€™â€ (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
In this case, the questions at issue
involved (1) the prosecutor challenging defendant’s version of events by asking
whether other witnesses had lied or were mistaken in their testimony; (2) a
series of three questions in response to defendant’s testimony that he never
took his children to Home Depot because it was a dangerous place, in which the
prosecutor asked variations of the question, “Would you consider the home in
which Tanya was sexually abused by you a dangerous place?â€; and (3) a question
about whether defendant reprimanded Tanya for dressing too provocatively
because he wanted Tanya’s body just for himself. These few questions, while in many instances
objectionable
title="">[8]
(and to which objections properly were sustained), neither violated due process
nor were reprehensible. In short,
defendant has not made out a case of prosecutorial misconduct.
E. Sufficiency
of the Evidence on Count 9
When suggesting to the jury which
incidents it could rely upon to convict defendant on count 9, the prosecutor
offered several possibilities, including one incident for which defendant
contends there was insufficient evidence.
Therefore, he contends the conviction must be reversed. Although we agree there was insufficient
evidence that the incident at issue -- the so-called hugging incident, in which
defendant picked Tanya up and dragged her down his body -- took place when
Tanya was under the age of 14,
name="_ftnref9" title="">[9]
we disagree that the conviction must be reversed.
Count 9 charged defendant with
committing a lewd act upon Tanya “[o]n or between November 16, 2002 and
November 15, 2007.†Tanya testified to
many incidents of abuse during that time period. She testified that defendant began having
sexual intercourse with her when she was nine or ten years old, described four
specific incidents – stating that in one of those incidents, after defendant
had sexual intercourse with her he orally copulated her and put his mouth on
her breasts -- and said there were two or three additional incidents of sexual
intercourse, the last one of which occurred when she was 10 or 11 years
old. She also testified that defendant
started kissing her and forcing his tongue into her mouth when she was eight or
nine, and that he did that “often.†During
closing argument, the prosecutor suggested that count 9 could be based upon
defendant’s kissing of Tanya’s breast or vagina, the last incident of sexual
intercourse Tanya described (when she pretended to be asleep), or the hugging
incident, but also reminded the jury that Tanya had testified that there were
two or three incidents of sexual intercourse or other lewd touching that she
did not specifically discuss, any of which the jury could use to convict
defendant.
A verdict based upon any of those
incidents, other than the hugging incident, would be a factually sufficient ground
for conviction. (See
314 [“even generic testimony (e.g., an act of intercourse ‘once a month for
three years’) outlines a series of specific,
albeit undifferentiated, incidents, each
of which amounts to a separate offense, and each
of which could support a separate criminal sanctionâ€]; People v. Matute (2002) 103 Cal.App.4th 1437, 1445-1446.) “‘Where the jury considers both a factually
sufficient and a factually insufficient ground for conviction, and it cannot be
determined on which ground the jury relied, we affirm the conviction unless
there is an affirmative indication that the jury relied on the invalid
ground.’†(People v. Thompson (2010) 49 Cal.4th 79, 119.) The reason for this is that “[a]n appellate court
necessarily operates on the assumption that the jury has acted reasonably,
unless the record indicates otherwise.
[¶] . . . Thus, if there are two possible grounds for
the jury’s verdict, one unreasonable and the other reasonable, we will assume,
absent a contrary indication in the record, that the jury based its verdict on
the reasonable ground.†(
1127.)
Defendant argues that in the present
case, the record provides an affirmative indication that the jury relied on the
hugging incident, based on three factors:
(1) the prosecutor argued that the jury could rely on the hugging
incident; (2) the date range for count 9 (November 2002 to November 2007) ran
one year longer than the date range for counts 5 through 8 (November 2002 to
November 2006), and there was no reason for the additional year except to point
the jury to the last incident, i.e., the hugging incident; and (3) the jury
must have relied upon the specific incidents Tanya described rather than the generic
ones because it was unable to reach a verdict until Tanya’s and defendant’s
testimony was read back to it.
None of those factors, however, either
alone or collectively, provides an affirmative
indication that the jury relied upon the hugging incident in finding defendant
guilty on count 9. Indeed, they
constitute conjecture at best. Because
we presume the jury acted reasonably, and relied upon a factually sufficient
ground for its verdict on count 9, we must affirm the conviction.
F. Instruction
on Lesser Included Offenses
Defendant contends the trial court
erred as to certain counts by failing to instruct the jury on attempted lewd
conduct and battery as lesser included offenses to lewd conduct. He notes that the prosecutor suggested to the
jury that it could convict defendant on counts 2 and 4 based upon Tanya’s
testimony that defendant kissed her on several occasions, and that it could
rely on the last incident that Tanya described -- when defendant hugged her by
picking her up and dragging her body down his -- to convict him on count
9. He argues that the jury may have
relied upon those incidents, and contends that the evidence regarding those
instances could have constituted battery or attempted lewd conduct rather than
the completed crime of lewd conduct. We
need not address his argument as it relates to count 9 in light of our
conclusion that the jury could not have relied upon the hugging incident in
convicting him. And as to counts 2 and
4, defendant’s argument is not persuasive.
“A trial court must instruct the jury
is lesser than, and included in, a greater offense with which the defendant is
charged ‘only if [citation] “there is evidenceâ€â€™ [citation], specifically, ‘
‘“which, if accepted . . . , would absolve [the] defendant from guilt of the
greater offence†[citation] but not the
lesser’ [citation].†(
733; see also People v. Breverman
(1998) 19 Cal.4th 142, 162 [trial court must instruct on lesser included
offenses only if there is substantial evidence “‘“from which a jury composed of
reasonable [persons] could . . . conclude[]â€â€™ that the lesser offense, but not
the greater, was committedâ€].)
We need not determine whether battery
is a lesser included offense of lewd conduct -- a question about which
appellate courts have disagreed (see, e.g., People
v. Thomas (2007) 146 Cal.App.4th 1278, 1293-1294 [battery is a lesser
included offense of lewd conduct]; People
v. Santos (1990) 222 Cal.App.3d 723, 738-739 [battery is not a lesser
included offense]) and which is currently before the California Supreme Court
(see People v. Gray, review granted
December 14, 2011, S197749; People v. Shockley,
review granted March 16, 2011, S189462) -- or whether defendant is correct that
an attempted, rather than completed, violation of section 288 occurs when the
perpetrator touches the victim with the intent to receive sexual gratification
in the near future rather than immediately.
Even if we assume that battery is a lesser included offense and that
defendant is correct about what may constitute attempted lewd conduct, the acts
at issue here cannot be found to constitute battery or attempted lewd conduct
rather than completed lewd conduct. They
either constitute actionable lewd conduct, or they are not criminal offenses at
all.
With regard to the kissing incidents,
in telling the jury that it could base convictions on counts 2 and 4 on
defendant kissing Tanya, the prosecutor specifically referred to Tanya’s
testimony that defendant forced his tongue in her mouth when he kissed
her. Such conduct cannot be deemed
“merely affectionate, though certainly unwanted and offensive from her
perspective,†and therefore simply a battery, as defendant contends. Nor can it be characterized, as defendant
posits, as offensive touchings that were only to facilitate defendant’s sexual
gratification in the near future rather than his immediate sexual
gratification, and therefore attempted rather than completed lewd conduct. We agree with our colleagues in Division 7 of
this District: “Unlike kissing without
the use of tongues, which is an important means of demonstrating parental love
and affection for a child, there can be no innocent or lovingly affectionate
tongue kissing of a child by an adult.â€
(In re R.C. (2011) 196
Cal.App.4th 741, 750-751.) Thus, to the
extent the jury relied upon the kissing incidents described by Tanya, those
incidents could only constitute completed lewd acts within the meaning of
section 288, subdivision (a), rather than battery or attempted lewd
conduct. Therefore, the trial court had
no duty to instruct the jury on battery or attempted lewd conduct as lesser
included offenses with regard to counts 2 and 4.
G. Denial
of Motion For New Trial
Defendant challenges the trial court’s
denial of his motion for a new trial.
When ruling on a new trial motion, the trial court “independently
examines all the evidence to determine whether it is sufficient to prove each
required element beyond a reasonable doubt to
the judge, who sits, in effect, as a ‘13th juror.’†(Porter
v. Superior Court (2009) 47 Cal.4th 125, 133.) “‘“‘The determination of a motion for a new
trial rests so completely within the court’s discretion that its action will
not be disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.’†[Citations.] “‘[I]n determining whether there has been a
proper exercise of discretion on such motion, each case must be judged from its
own factual background.’â€
[Citation.]’†(
42-43.)
In this case, defendant moved for a
new trial on the grounds that (1) the incidents of sexual abuse were not
established with sufficient specificity for the jury to determine which alleged
acts were associated with each count, and (2) there was insufficient evidence
to corroborate Tanya’s testimony. The
trial court denied the motion.
First, the court found that Tanya’s
testimony of specific incidents, combined with her generic testimony regarding
other incidents, was sufficient for the jury to determine which incidents could
be relied upon for each count. Next, the
court explained that it acted as a “13th juror†and re-weighed the evidence, and
concluded that it believed Tanya’s testimony and disbelieved defendant’s
testimony. In doing so, the court noted
that it had difficulty with some of the details Tanya gave about the touching
incident in the vehicle on the way to Home Depot and some of the acts of sexual
intercourse. But the court explained why
it believed her testimony and disbelieved defendant: “[Defendant] testified and he lied. He just lied, flat out lied. Why would he lie? He didn’t say I took her to the Home
Depot. We went to the Home Depot and
nothing happened. He said I would never
take my kids to the Home Depot. It’s too
dangerous. I’ve been to the Home Depot. I’ve taken my kids to the Home Depot. There are kids in strollers at the Home
Depot. It’s too dangerous? Are you kidding me? [¶]
And then he says in his testimony, well, she’s making it up because
resentment of having to do the dishes.
Come on. So why is he going to
lie if he didn’t do this? So then I go
back to Tanya and I think, okay. She’s
young at the time. It happens. One of the problems in delayed reporting is
that not only are you young, but you’re likely to forget the details. Does she forget that she’s molested? I don’t think so. [¶]
And what really did it for me, and this is pretty typical of most cases,
okay. Let’s get away from the defendant
who is involved, the witness who is involved.
Let’s go to some independent witness.
In this case we don’t have an independent witness who saw the crime, but
we have Mr. Bass who says that first one week she said that she had some secret
and then she wasn’t going to talk about it.
And he comes in the next week and there’s Tanya in the prayer room by
herself and she’s crying, uncontrollably crying. And he talks to her and then she reveals for
the first time what happens. [¶] Now, if this is all done by her, she’s made
up the entire thing to get her father in trouble, then this has got to be a
huge acting job and it’s all planned out that she’s intending to fool Mr. Bass
into testifying for her and getting on her side by going into this acting
job. I don’t buy it for a minute. So I think that what happened to her happened
to her. She’s got some of the details
wrong, but when I weigh all of the evidence, I believe the evidence proves
beyond a reasonable doubt that he’s guilty of all of these crimes.â€
On appeal, defendant contends the
trial court denied his motion as to counts 3 and 4 based upon a fact not in
evidence -- i.e., that Home Depot is not dangerous for children -- from which
the court concluded that defendant was lying when he testified that he never
took his children to Home Depot. He
argues that, in doing so, the court abused its discretion. (Citing People
v. Cluff (2001) 87 Cal.App.4th 991, 998 [“A trial court abuses its
discretion when the factual findings critical to its decision find no support
in the evidenceâ€].) Defendant
misconstrues the trial court’s comments.
The trial court’s comments regarding
Home Depot were not specifically directed at counts 3 and 4. Rather, they were made in the context of the
court’s discussion about the relative credibility of Tanya and defendant. Sitting as a “13th juror†and using its
common sense and experience -- as the jury is instructed to do (see CALCRIM No.
226 [“In deciding whether testimony is true and accurate, use your common sense
and experienceâ€]) -- the court concluded that defendant’s testimony that he
never brought his children to Home Depot and that Tanya made up the allegations
about abuse because she resented having to do the dishes was not
believable. But more importantly, the
court disbelieved defendant’s denial of abuse because it believed Tanya’s
assertion of abuse, in part because of Bass’ testimony regarding her demeanor
when she disclosed the abuse for the first time.
Defendant contends in a separate
argument, however, that the trial court’s reliance on Bass’ testimony to deny
the new trial motion was an abuse of discretion. He argues that the court’s consideration of
Bass’ testimony about Tanya’s demeanor when she disclosed the molestation by
defendant was improper because only the fact of the disclosure is
admissible. (Brown, supra, 8 Cal.4th
at p. 763.) For the reasons expressed in
Section B., ante, defendant is
incorrect. We conclude the trial court
did not abuse its discretion by denying defendant’s motion for a new trial.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
undesignated references are to the Penal Code.
and Tanya’s mother had three children: a
boy (J.R.) and two girls (E.R. and M.R.).
