Filed 8/31/17 P. v. Aguilar CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Javier Aguilar appeals from a judgment after a jury convicted him of numerous sexual offenses against three young family members. Aguilar contends the trial court erred by excluding evidence that one of the victims accused her stepfather of offering her money in return for sexual favors. He also argues there is a mistake in the abstract of judgment. None of his contentions have merit, and we affirm the judgment.

FACTS

During the charged incidents, Aguilar lived with his brother, his brother’s wife, his nieces C.A. and I.A., and his brother’s stepdaughter, A.D., among others. In 2010, C.A. went to a medical facility and when filling out a questionnaire, checked a box indicating she had previously been forced to have sex. When questioned about her answer at the facility, C.A. stated she had been touched by her uncle when she was younger and indicated a younger sister had also been molested. A counselor from the facility notified police, who initiated an investigation into C.A.’s possible molestation. The police inquiry led to further investigation into possible molestation of I.A. and A.D.

Police arrested Aguilar in 2010. An amended information charged Aguilar with forcible rape (Pen. Code,[1] § 261, subd. (a)(2); count 1), committing lewd acts on a child under 14 years old (§ 288, subd. (a); counts 2-11, 13-14), and committing lewd acts on a child under 14 years old by means of force, violence, or duress (§ 288, subd. (b)(1); count 12). The amended information alleged Aguilar committed the offenses against more than one victim within the meaning of section 667.61, subdivisions (b), (c), and (e).

Forcible Rape of A.D. (Count 1)[2]

A.D. testified that when she was 15 years old, she found three bags of white powder in the apartment she shared with her family and Aguilar. Aguilar saw A.D. with the bags, grabbed them from her, and told her not to tell her mother. A.D. told her mother about the bags a few days later.

Aguilar confronted A.D. concerning telling her mother about the bags. He told A.D. “I told you not to tell your mom and now you’re going to be mine.” A.D. ran to the bathroom, but Aguilar forced the door open and pushed A.D. on the ground. Aguilar sat on top of A.D., pinned her hands to the floor, wrapped his legs around her thighs, and held her legs down. Aguilar pulled A.D.’s bottoms down, unzipped his pants, and raped A.D., ejaculating inside of her. A.D. kept the rape to herself because Aguilar threatened to do the same thing to her sisters if she told anyone.

After the assault, A.D.’s mother told A.D. a neighbor saw A.D. and Aguilar hugging and kissing. A.D. denied hugging or kissing Aguilar. A.D.’s mother testified she confronted Aguilar about the incident, and he said he loved A.D. and wanted permission to date her.

At trial, the prosecutor sought to exclude A.D.’s statement her stepfather once offered her money for sex. During A.D.’s interview with police in connection with count 1, she referred to an incident when she was 10 years old where her stepfather, Aguilar’s brother, asked her if he could have sex with her if he gave her 20 dollars. She said “no.” The court excluded the evidence, concluding it was too speculative.

Molestation of C.A. (Counts 2-9)

When C.A. was eight or nine years old, Aguilar would often have her sit in his lap and would rub her vagina over her clothing. If C.A. tried to get away, Aguilar would hold her down with one hand on her shoulder while using the other hand to touch her vagina. When C.A. was 10 years old, Aguilar began touching her vagina under her clothes. The molestation continued until C.A. was 11 or 12 years old.[3]

Molestation of I.A. (Counts 13-14)

When I.A. was seven years old, one day when she got home from school she was home alone with Aguilar. He pinned her against a wall, caressed her body and hair, told her how pretty she was, and asked her if she knew what happened between a man and a woman when they had sex. He touched her breasts and thighs, and then touched her vagina over her underwear. Aguilar smelled of alcohol and I.A. testified he was “walking crooked.”

I.A. also testified that when she was 10 years old, Aguilar pulled her onto his lap. I.A. got up and went down the hall, but Aguilar followed her. He grabbed her and kissed her on the cheek. I.A. told him to stop, and he grabbed her harder. She broke free and ran away.

Guilty Verdict and Sentencing

The jury returned guilty verdicts on counts 1 through 9, 13, and 14. The jury found true multiple victim allegations. The jury could not return a verdict on counts 10, 11, and 12, a mistrial was declared on those counts, and they were later dismissed. The trial court sentenced Aguilar to 15 years to life on count 1, along with consecutive 15 year to life terms on counts 1, 2, and 13. The court imposed concurrent 15 year to life terms on the remaining eight counts. The court sentenced Aguilar to a total term of 45 years to life.

DISCUSSION

I. Exclusion of Evidence

Aguilar argues the trial court erred by excluding evidence A.D. once accused her stepfather of offering her money in return for sex. We find no error.

As an initial matter, the Attorney General contends Aguilar’s failure to comply with the procedural requirements set forth in Evidence Code section 782 precluded the admission of the evidence at issue. Evidence Code section 782 provides a procedure for a defendant to attack the credibility of a witness by introducing evidence of that witness’s past sexual conduct. (Evid. Code, § 782.) While the term “sexual conduct” in Evidence Code section 782 is interpreted broadly, it should not include instances where a defendant seeks to impeach a witness “with allegedly false statements, not sexual conduct or . . . a willingness to engage in sexual conduct.” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456.) The trial court correctly recognized this limitation, and did not exclude the evidence based on a finding Aguilar had not complied with the procedural requirements of Evidence Code section 782. Indeed, when the prosecutor suggested Aguilar needed to comply with Evidence Code section 782, the court explained it did not apply because there was no allegation A.D. had sex with her stepfather.

Turning to the merits of the argument, the trial court “may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code,

§ 352.) Exclusion of evidence is reviewed for abuse of discretion. (People v. Cornwell (2005) 37 Cal.4th 50, 81, disapproved on other grounds in People v. Doolin (2009)

45 Cal.4th 390, 421, fn. 22.)

The trial court did not abuse its discretion by excluding the proffered evidence as too speculative. The statement made by A.D. was a vague, passing reference. The incident occurred several years before A.D.’s rape and was entirely different from count 1. It allegedly involved a different perpetrator, A.D.’s stepfather, and did not involve forcible rape, but rather solicitation for sex. The fact that A.D. told a police officer she declined an offer of sex from another relative was irrelevant to prove any elements of count 1, and did not in any way reflect on her veracity.

Even if the proposed evidence was somehow relevant to count 1, the court did not err by excluding it to avoid jury confusion and undue consumption of time. The truth of A.D.’s allegation against her stepfather would have required him to testify, and if he denied A.D.’s accusation, a trial within a trial on this collateral issue would have ensued. The court’s decision to exclude this evidence was not an abuse of discretion.

Aguilar also contends the exclusion of this evidence deprived him of a constitutional right to present a defense. “[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ [Citations.]” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) While a criminal defendant is entitled to a complete defense, this does not give license to present any and all evidence without restriction. “A defendant’s right to present relevant evidence is not unlimited . . . A defendant’s interest in presenting such evidence may thus ‘“bow to accommodate other legitimate interests in the criminal trial process.”’ [Citations.]” (United States v. Scheffer (1998) 523 U.S. 303, 308, fn. omitted.) While we recognize a criminal defendant’s constitutional right to a complete defense, we determine no constitutional violation occurred here.

Aguilar was allowed to present his case fully, claiming the victims lied in their testimony and none of the alleged acts took place. The court’s exclusion of potential impeachment evidence against A.D. did not impact Aguilar’s ability to call witnesses on his own behalf. Aguilar was able to present inconsistencies in the victims’ statements and to cross-examine them about the discrepancies. Aguilar was able to present his defense, and there was no constitutional violation.[4]

II. Abstract of Judgment

Aguilar argues the abstract of judgment incorrectly imposed an additional consecutive 15-year term on count 13, and additional concurrent 15-year terms for counts 7, 8, 9, and 14. He requests correction of the abstract of judgment to delete the additional terms. We find no error.

The first page of the abstract of judgment sets forth a summary of all of counts (1-9, 13, and 14) for which Aguilar was sentenced to an indeterminate term in state prison. The first page also lists the details of the felonies Aguilar was convicted of committing. Because the first page of the abstract of judgment only contains six spaces to list felony convictions, additional counts were listed on a continuation page. Therefore, the first page of the abstract of judgment listed details on counts 1 through 6, while the second, or continuation page, listed the remaining convictions on counts 7-9, 13, and 14. Because additional terms were not imposed, the abstract of judgment needs no correction.

DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.