P. v. Meraz

Filed 10/26/06 P. v. Meraz CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Raymond Edwards, Jr., Judge. Affirmed in part; reversed in part and remanded for resentencing.

Daniel R. Meraz was convicted of eight counts of committing lewd acts upon a child under the age of 14. It was found true he committed the offenses against more than one victim within the meaning of Penal Code^[1] section 667.61, subdivisions (b), (c) and (e), and that the offenses were committed against more than one victim at the same time or in the same course of conduct within the meaning of section 1203.066, subdivision (a)(7).

Meraz was sentenced to a term of 45 years to life in prison. He appeals, arguing ineffective assistance of counsel, insufficient evidence to support two of the counts and sentencing error.

FACTS

A. Prosecution Case

1. G. E.

Five-year-old G.E. attended kindergarten at Arroyo Vista Elementary School in Eastlake from July 2002 to June 2003. G. attended a YMCA after-school program at the school. Appellant worked in that program from 1996 to 2003.

In the fall of 2002 G. began misbehaving at the after-school program and at home. She washed her hands frequently and refused to wear skirts or shorts or any kind of shirt that exposed her arms.

On April 12, 2003, G. told her mother she felt sick and thought she was going to throw up. When her mother took her to the toilet, G. stated: "Actually, I don't feel sick," and began to stammer. When asked what she meant, G. said: "What Mr. Danny [appellant] does to me." When asked what he did, G. lifted her pajama top and made the motion of a hand rubbing across her chest. G.'s mother asked if she was sure and G. said she was. G. also indicated appellant put his hand down her pants. G.'s mother told her the matter was very serious and asked if she was telling the truth. G. told her mother she was.

G. told her mother appellant "did it" to her friends, Krista and Samantha. When G.'s mother told her she would have to tell G.'s father, the child pleaded with her not to do so, that she did not want to get appellant in trouble.

G. later told her mother the touching happened at nap time while the other children were lying down. Appellant would call a girl to his desk, and while reprimanding her touched her in an inappropriate manner.

G.'s mother reported the matter to the police and told Krista and Samantha's mothers about G.'s accusations.

G. testified at trial. G stated that during naptime appellant would call her to his desk and ask her to sit on his lap facing away from him. He would then touch her "privates" including her breast area, her buttocks and genitals. G. estimated this occurred on more than 10 occasions. G. testified she saw other children called to appellant's desk, including Samantha and Krista, but did not know if appellant touched them.

2. Krista W.

When Krista W.'s mother learned of G.'s accusations against appellant, she asked Krista if anything happened at after-school care that made her uncomfortable. When Krista was not forthcoming, her mother asked whether appellant ever touched her inappropriately. Krista said "yes." Krista told her appellant touched her "underneath her shirt, on her boobies and her potty." Krista used these words to refer to her breasts and vagina. She said he touched her on the outside of her panties and under her shirt. Krista explained appellant touched her at naptime. He would call her to his desk and have her sit on his lap. Krista stated she saw appellant touch G. in the "potty area" while G. was at appellant's desk.

Krista testified at trial that at naptime appellant turned off the lights in the classroom and called her to his desk. Appellant placed her on his lap and touched her on her "potty and booby." On occasion appellant made Krista touch him. Krista stated she did not talk to G. or Samantha A. about the touching.

3. Samantha A.

Samantha A.'s mother learned about the allegations against appellant made by G.E. She asked Samantha if anyone at the YMCA. asked her to do anything she did not want to do. Samantha began crying and stated that during naptime appellant would call her to his desk and touch her in the chest area.

At trial Samantha testified that at naptime appellant put her on his lap and touched her chest. Samantha stated she believed she saw appellant inappropriately touch G.

G., Krista and Samantha were interviewed at Children's Hospital and tape recordings of those interviews were played at trial.

B. Defense Case

Appellant testified and denied touching the children inappropriately.

DISCUSSION

A. Ineffective Assistance of Counsel

Appellant argues counsel provided him ineffective assistance in failing to more fully impeach various witnesses and in failing to object to the admission of the videotaped interviews of the children.

A criminal defendant is entitled to the effective assistance of counsel. It is the defendant's burden to demonstrate the inadequacy of trial counsel. A defendant must show both that the assistance given was deficient, that is, it fell below an objective standard of reasonableness under prevailing professional norms, and that it was prejudicial. Prejudice exists when it is reasonably probable that but for such deficient assistance the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the case. We defer to counsel's reasonable tactical decisions and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)

"A defense counsel is not required to make futile motions or indulge in idle acts to appear competent. [Citations.]" (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091-1092.)

"Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.] " (People v. Freeman (1994) 8 Cal.4th 450, 509.)

Moreover, when "'the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation."'" (People v. Earp (1999) 20 Cal.4th 826, 871.)

1. Impeachment

After appellant was convicted, substitute counsel sought a new trial making several arguments, including a claim of ineffective assistance based on counsel's failure to impeach G.'s parents and Samantha's mother, Janet G. Those arguments are repeated on appeal.

a. Janet G.

With regard to Janet G., appellant notes that at trial she stated Samantha only lied sometimes. During direct examination Janet was asked about Samantha's truthfulness. She stated: "She lies sometimes about eating cookies before dinner, about watching TV when she's grounded and she's not supposed to, about feeding the cats and that's her responsibility." Janet stated that when Samantha was caught lying she was punished. She stated she believed Samantha understood the difference between the truth and a lie and the consequences of a lie.

Attached to the motion for new trial was a document attributed to Janet that the motion described as an earlier filed questionnaire. (There is no statement concerning exactly when the document was prepared or for what purpose.) The document contains a question asking: "What most concerns you most about your child?" The answer states: "Her constant lying - for no reason at all. Very rebellious."

At a hearing on the new trial motion, counsel testified he was in possession of the document at the time of trial containing Janet's statement concerning Samantha's constant lying. He stated it was contained in "some psychological or therapist's records." Counsel stated he had no recollection of questioning Janet at trial about that statement. Counsel stated he had no recollection of any trial strategy related to not questioning Janet about the statement. Janet's examination occurred on July 19, 2004. The hearing on the motion for new trial was held on March 30, 2005.

Defense counsel impeached the complaining witnesses thoroughly concerning inconsistencies and the possibility of contamination or collusion. He was unable to remember why he did not question Janet concerning an earlier statement, apparently made by her (there is no testimony from Janet that she made the statement), concerning Samantha's constant lying. Certainly, however, counsel could conclude that it would come as no surprise to the jury that a very young child might lie (indeed, Janet admitted that she did) or that the jury would fail to understand lies by young children are most often about trivial matters, as Janet testified they were. Counsel could reasonably conclude nothing was to be gained by pursuing this line of questioning and it might detract from his defense based on inconsistent or collusive testimony.

b. G.'s Parents

In his motion for new trial, appellant argued counsel provided ineffective assistance when he failed to evidence certain inconsistencies in the stories of G. and her parents.

Appellant noted that at trial G. and the other victims testified they were touched by appellant at naptime. With his motion for new trial, appellant offered the police report of the first interview of G.'s father and mother. The report, which counsel had at the time of trial, indicates G.'s mother told the officer that G. stated appellant did not touch her during sleep time. Rather, the touching occurred after appellant picked the children up from kindergarten and took them to day care. G.'s father reported to the officer that in the afternoon the classroom lights were turned down and the shades were pulled for naptime. In his motion appellant notes it was not until days later that G.'s mother reported that G. said the touching occurred at naptime.

Appellant argued below and now on appeal that these "glaring contradictions" were never addressed in trial counsel's examination of the witnesses and such omission amounted to ineffective assistance. The record before this court contains only a police report of an interview with G.'s parents soon after they first heard her claim of being assaulted. During his examination at the hearing on the motion for new trial, counsel stated that while he recalled he had the report before trial he had no present recollection of the statement in the report that G. at first claimed the touching did not occur at sleep time.

Appellant has failed to show that trial counsel provided ineffective assistance in not questioning G. or her parents about the apparent contradiction between the child's first report and her testimony at trial concerning the time of the touching. There is no doubt such a contradiction would have potential benefits for the defense. Counsel, however, was very active in developing a case showing contradictions in the testimony of witnesses and the possiblity of collusion and contamination.

Given the time between trial and the hearing on the motion for new trial, counsel had little recollection of the subject police report and essentially had no idea why he had not questioned the witnesses concerning the subject contradiction. It is certainly conceivable, however, counsel might conclude because the statement in the police report was not directly from G. and was made while the child and her parents were upset that it could too easily be dismissed as a misstatement or miscommunication. Counsel could reasonably decide that other evidence would better serve his defense based on collusion and contamination and omit questioning on the subject statement.

2. Admission of Videotape

Appellant argues trial counsel provided ineffective assistance of counsel when he failed to object to the admission as hearsay of the videotaped interviews of the victims conducted at Children's Hospital.

At the hearing on in limine motions the court addressed the admissibility of the victim's out-of-court statements under Evidence Code section 1360. That section makes hearsay statements by victims under 12 years of age describing acts of abuse or neglect admissible at trial. Trial counsel discussed the admissibility of the victims' statements and stated that given the many contradictions in the victims' statements he wanted them admitted and did not object to their admission under section 1360.

The reasonableness of that tactical decision given the nature of the evidence in the case and the defenses offered is unassailable.

B. Sufficiency of Evidence

Appellant argues the evidence was insufficient to support his conviction on counts 5 and 7.^[2] Each of those counts charged a violation of section 288, subdivision (a), based on appellant's alleged touching of Samantha A's. chest. Appellant notes an element of the offenses is that the touching be done with the "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child." (§ 288, subd. (a).) Appellant argues Samantha's testimony about the touching was vague and tentative, she stated he only touched her on her clothing and indeed was unable to remember whether he touched her more than once. Appellant argues the evidence was insufficient to show the requisite intent to arouse or gratify sexual desire, etc., in himself or the child.

In determining whether the evidence is sufficient to support the verdict we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)

The intent with which an act is done is shown by all the surrounding circumstances, including the charged act, other charged acts, the relationship of the defendant and the victim and evidence showing an attempt to avoid detection or to obtain the victim's cooperation. The nature of the touching is not crucial. What is crucial is the intent with which the touching is done. (People v. Martinez (1995) 11 Cal.4th 434, 445.)

1. Facts

Samantha's mother testified that while crying Samantha told her that during naptime appellant had her come to his desk where on several occasions he touched her on the chest through her clothing. Samantha told her mother she was very embarrassed by the touching.

During her interview with a social worker Samantha indicated the touching occurred on more than one occasion and while she was sitting on appellant's lap when the lights were out.

At trial Samantha testified that at naptime she would on occasion go to appellant's desk and he would put her on his lap.

2. Discussion

The evidence was sufficient to support two counts charging separate touchings of Samantha's chest. It is true that in her trial testimony Samantha stated she could not remember if appellant touched her more than one time on the chest. Viewing all the evidence, however, including other statements the child made, the jury could reasonably conclude she was touched on the chest by appellant on several occasions.

The evidence was sufficient to support a finding that the touching was done with the relevant intent. Appellant touched several children inappropriately. The touching of Samantha occurred at naptime when the room lights were off. He touched her on the chest while she was sitting on his lap. Samantha understood the nature of the touching was such that it was inappropriate. The evidence was sufficient for the jury to reasonably conclude appellant touched Samantha with the "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the defendant] or the child."

C. Consecutive Sentencing

Appellant argues the trial court erred in concluding that pursuant to the "one strike" law (§ 661.61) it had no discretion to sentence him to concurrent rather than consecutive terms for his multiple section 288, subdivision (a), convictions. The Attorney General agrees and concedes the matter should be remanded for resentencing.

As to the convictions for violations of section 288, subdivision (a), in counts 1, 5 and 8, appellant was sentenced to consecutive terms of 15 years to life. In doing so the trial court stated: "And this law provides that under this statute, punishment is provided to be imposed only once per victim per occasion and full term consecutive life sentences and enhancement for multiple victims."

Defense counsel objected, stating that contrary to the trial court's position section 667.61 did not require the imposition of consecutive sentences on the section 288, subdivision (a), convictions.

In People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261-1263, the court concluded that while section 667.61, subdivision (b), mandates the imposition of 15-year-to-life terms for each count involving separate victims, it does not require the imposition of consecutive terms.

In concluding to the contrary, the trial court erred. The matter is remanded to the trial court for it to exercise its discretion in determining whether the sentences on counts 1, 5 and 8 should be served concurrently or consecutively.

D. Cruel and/or Unusual Punishment

Appellant argues the imposition of consecutive terms in this case constitutes cruel or unusual punishment. The matter has been remanded for resentencing.

The consecutive sentences on counts 1, 5 and 8 are reversed and the matter is remanded to allow the trial court to consider whether the sentences on counts 1, 5 and 8

should be served consecutively or concurrently. In all other respects the judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Both parties refer to the counts as 4 and 6, but in count 6 the victim was G.E. and appellant was found not guilty of the charge in count 6. In counts 5 and 7 the victim is Samantha A., and the acts involved alleged touching of her chest, the acts to which appellant's insufficiency of evidence claim refers.