P. v. Ramirez

Filed 2/7/07  P. v. Ramirez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        Appellant Nahu Arellano Ramirez was convicted by jury of one count of continuous sexual abuse of a child (count 4).  (Pen. Code, §  288.5.)[1]  The trial court denied probation and sentenced appellant to a midterm commitment of 12 years in state prison.  Appellant contends the trial court erred in admitting a videotape of the victim playing with anatomically correct dolls and in denying him probation.  We affirm.

FACTS

Prosecution Evidence

                        In 2003 and 2004, appellant lived with his girlfriend, Maria O. (mother), and her six-year-old daughter, E., in an apartment in Santa Barbara with 11 other people, including her cousins H. and A.  E. described appellant as her stepfather and called him Nahu.  Appellant, mother and E. shared a room furnished with a curtained bunk bed.  Appellant and mother slept on the lower bunk, and E. slept on the upper bunk.

                        In 2004, E.'s 12-year-old cousin, H., came downstairs and saw appellant and E. in the same bed, " touching," while lying down, with their clothing on.  Appellant had his arm around E., but he let go of her when he saw H.   E. described an incident in which she and appellant had been hugging each other, with appellant beneath her, when H. saw them.  They quickly " let go" when H. saw them.

                        In August 2004, E. told her 12-year-old cousin R. that whenever she " peed," her " part hurt[]," that appellant had touched her on two different occasions and that he had put his fingers in her " pussy."   R. immediately told her mother (mother's sister and E.'s aunt) about E.'s complaints.  When E.'s aunt spoke to E., E. told her that her " part" hurt, and that appellant had " penetrated" her with his fingers.  Because appellant was always a " gentleman," the aunt did not initially believe E. or tell anyone about her complaints.

                        On a later occasion, during a party, E. told her cousin R. that appellant made her bite his penis and " forced her to do it," and that she did not want to do these things.  R. again described E.'s complaints to her mother (E.'s aunt).  When E.'s aunt spoke to E., E. said that appellant had pushed her head down and said, " Suck me here."   The aunt did not tell mother what E. had said because she feared that mother would not believe her or would get angry.  On September 14, 2004, the aunt reported E.'s disclosures by making an anonymous call to her school.

                        On September 14, 2004, while observing children in the playground at the school, Family Services counselor Rosalinda Cardenas observed E. pushing another child.  Cardenas later spoke with E. in a school office.  They discussed how people should act on the playground and how to tell other people to stop doing things that they do not like.  Cardenas asked E. if anyone had ever done something to her that she did not like.  After a period in which she was quiet, E. told Cardenas that her " stepfather" (appellant) was making her sit on top of him and showing her " the thing that he goes pee pee from."   E. told Cardenas:  " He makes me suck it.  He then tries to put it in where I go pee pee from.  He rubs my thing where I go pee pee from.  He tries to put the thing that he goes pee pee from in my pee pee.  He puts his head down in my pee pee."   Cardenas telephoned Child Welfare Services (CWS) after E. returned to class.

                        Later that afternoon, Christina Lomeli, a CWS investigator, met with E. in the counselor's office at the school.  E. told Lomeli, " My stepdad makes me bite his thing, and then he wants me to suck it."   When Lomeli asked what she meant by " thing," E. pointed to the penis in a picture of a man.  E. said that she had sucked appellant's penis " many times."   E. described how appellant " scratch[ed]" her vagina with his penis and finger, and she demonstrated, using a jerking motion, resembling masturbation.

                        Later on September 14, Lomeli drove E. to the SART (Sexual Assault Response Team) cottage where Cecilia Rodriguez, a forensic child abuse expert, interviewed E.  During the initial portion of the interview, Rodriguez showed E. papers with anatomical male and female figures and asked her to name various parts of the body, including facial features, arms, legs, genital organs, etc.  E. described several sexual acts that appellant had perpetrated upon her and required her to perform, including digital and penile penetration and oral copulation.  While using her own terms to describe those acts, E. pointed to the papers with anatomical male and female figures.  Rodriguez then provided E. with anatomically correct male and female dolls.  E. continued to use her own terminology to describe and demonstrate appellant's conduct but used the dolls rather than anatomical figures as she spoke.

                        Dr. Elliot Schulman examined E. on September 14 at the SART cottage.  He found no physical injuries.  His inability to find a physical injury did not mean that she had not been sexually assaulted.

                        Santa Barbara Police Department Detective Jaycee Hunter interviewed appellant on September 14.  Early in the interview, appellant denied that he had ever molested or raped E. or touched her vagina.  Hunter used a variety of ruses during the interview (including untrue claims that appellant's semen had been found on E.'s leg, that a physical examination had established that a penis or finger had touched her vagina, and that biological evidence would disclose whether appellant had ever touched her vagina, etc.).  Appellant disclosed a " play session" during which E. had bent down and bit his penis on the outside of his clothing and another incident when E. had been leaving the bathroom, naked, and he had playfully slapped her and brushed against her " groin" area.  He also admitted having touched her on another occasion to inspect her vagina after she had complained of vaginal pain.

                        Detective Hunter also interviewed E.'s aunt.  The aunt described E.'s report that appellant had " penetrated" her vagina with his finger and forced her to bite and suck his penis.

                        E. went home with mother on September 14, 2004.  On September 15, Lomeli (the CWS investigator) again met with E. at her school.  E. seemed angry and she refused to make eye contact with Lomeli.  E. told Lomeli that mother was very angry with her and mother had told her not to talk to Lomeli.  She also indicated that mother knew what appellant would do to E. because she had heard mother discussing it with appellant.  Mother told her to stop sitting on appellant's lap.

                        E. met with Rodriguez (the forensic child abuse expert) and the prosecution several months after their meeting in the SART cottage.  E. then refused to talk to the prosecution about the events that she had described to Rodriguez in September.  E. also said that mother had told her that if she said any more " bad things," mother would go to jail.  E. indicated that the things she had said while in the SART cottage were not true.  At the same time, however, when asked whether it bothered her when appellant touched her, E. responded, " Yes."   At trial, E. testified that appellant did not touch her, but only " tickled" her belly, and that she climbed on him and hugged him at times.

                        At trial, Rodriguez testified that victims of child sexual abuse often retract disclosures regarding sexual abuse.  Some victims feel responsible for the family disruption that follows such disclosures.

Defense Evidence

                        Appellant denied that he had ever touched E. in a sexual manner, with his hands or penis, on either her vaginal or anal area.  He also denied that he had ever made her put her mouth or hands on his genitals.  Appellant and mother slept on the bottom bunk of the bed and E. slept on the top bunk.

                        On September 14, 2004, appellant accompanied mother when she went to the police station to get E.  Appellant could not understand all of Detective Hunter's questions during his long interview at the police station.  During that interview, appellant repeatedly denied having had any sexual contact with E.

                        Soledad S. lived across the street from E., mother and appellant.  On one afternoon, about a year before appellant's trial, Soledad visited E.'s house, found no one downstairs, and went upstairs where she heard voices.  E. and her cousin A. were in an upstairs bedroom, in front of the television, watching a pornographic tape of people engaged in oral sex.  E. ejected the tape.  When Soledad told mother about the tape, mother pulled it apart and threw it in the trash.

DISCUSSION

1

The Trial Court Did Not Err By Allowing the Jury to View the Videotaped Interview of E. Using Anatomically Correct Dolls While She Described the Sexual Acts

That Appellant Perpetrated Upon Her and Required Her to Perform

                        Appellant argues that the trial court erred by allowing the jury to view the videotaped interview of E. with Rodriguez.  Appellant contends such evidence was " demonstrative" evidence that was introduced without proper foundation.  We disagree.               Appellant relies upon People v. Gilbert (1992) 5 Cal.App.4th 1372, 1388, a case where the reviewing court upheld the exclusion of an in-court demonstration of live models to reenact events that had been described by the victim.  In Gilbert, substantial differences between the physical characteristics of the live models and those of the defendant and victim supported the finding of an inadequate foundational requirement (similarity between the conditions of the alleged occurrence and the demonstration).  Appellant argues that the conditions of the alleged occurrence and the " demonstration" below, where dolls rather than live models were used in the demonstration, were even more dissimilar than those in Gilbert.  This argument does not establish any error in admitting the videotaped interview. 

                        As the Gilbert court noted, " The determination whether to admit demonstration evidence requires the trial court to decide whether the evidence is 'of any value in aiding the jury.'  [Citation.]  The trial court's ruling on admissibility will be reversed only where the trial court abused its broad discretion.  [Citations.]"   (People v. Gilbert, supra, 5 Cal.App.4th at p.  1388; see also People v. Adamson (1946) 27 Cal.2d 478, 486.)  The trial court did not abuse its discretion in admitting the videotaped interview in which E. used the dolls as she described several incidents.  Before trial, E. had complained to several adults and a child concerning sexual acts that appellant had perpetrated upon her and required her to commit.  After authorities interviewed and arrested appellant, mother got very angry with E. and told her not to talk to Lomeli.  Mother also told E. that if she said any more " bad things," she (mother) would go to jail.  After E. testified that her prior complaints regarding appellant's conduct were untrue, the trial court properly admitted the videotaped interview containing E.'s prior inconsistent statements to impeach her trial testimony.  (See Evid. Code, §§  1235, 770.)

                        Appellant also argues that the videotaped interview of E. should have been excluded because it was more prejudicial than probative and cites Evidence Code section 352 and other authorities.  We also reject this argument.  " [E]xcept in rare cases of abuse, demonstrative evidence that tends to prove a material issue or clarify the circumstances of the crime is admissible despite its prejudicial tendency."   (People v. Adamson, supra, 27 Cal.2d at p.  486.)  The reviewing court can find an abuse of discretion only if there is " no logical reason for the court's action."   (People v. Skinner (1954) 123 Cal.App.2d 741, 752.)  This is not a case where there was no logical reason for the court's admission of the challenged video evidence.  The videotaped interview of E. was critical and probative evidence admitted for a very logical reason--to impeach her testimony, as we have explained above.  (See Evid. Code, §§  1235, 770.)

                        Appellant further argues that Rodriguez's expert testimony concerning child sexual abuse victims and the videotape were admitted improperly because the prosecution failed to lay a proper Kelly-Frye foundation.  (See People v. Kelly (1976) 17 Cal.3d 24, 30, [in which our Supreme Court adopted the rule of Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014, regarding the use of new scientific methods of proof].) [2] In making this argument, appellant relies in large part upon In re Amber  B. (1987) 191 Cal.App.3d 682, 691, where the improper evidence consisted of expert testimony interpreting the aggressive play of a three-year-old victim with anatomically correct dolls as having been consistent with the play of a victim of sexual molestation.  In Amber B., the expert relied upon a " psychological analysis of a subject's behavior [and her reports of abuse] to determine whether sexual abuse had previously occurred."   (Id. at p.  688.)  In contrast, here, Rodriguez neither analyzed E.'s behavior nor " express[ed] an expert opinion that E. had been sexually molested by her stepfather."   The trial court did not err in allowing the jury to view the videotaped interview of E.

                        Moreover, any error in admitting the videotaped evidence and expert testimony was harmless.  E's cousin R., E.'s aunt, and expert witnesses Lomeli, Rodriguez and Cardenas testified regarding E.'s complaints about appellant's sexual abuse.  Their testimony was corroborated by appellant's admissions and inconsistent statements during his interview with Detective Hunter and his in-court testimony.  In addition, the court instructed the jury regarding the limited purpose for which it could consider Rodriguez's expert testimony.  It is not reasonably probable that appellant would have received a better result in the absence of the claimed error concerning the videotaped evidence and the expert testimony concerning the dolls.  (See In re Christine C. (1987) 191 Cal.App.3d 676, 680.)

2

The Trial Court Did Not Abuse Its Discretion in Denying Appellant Probation

                        While recognizing that a trial court's order " granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion," appellant argues that the trial court abused its discretion in denying him probation.  (People v. Henderson (1964) 226 Cal.App.2d 160, 163.)  There was no such abuse of discretion.

                        The probation officer noted the emotional harm E. could suffer if appellant were released, the serious nature of the crime, E.'s vulnerability, and appellant's lack of remorse.  The probation officer also noted several positive factors regarding appellant, including his lack of any history of violence or criminal convictions, or anger toward E., and his willingness and ability to comply with the terms of probation.  A court-appointed psychologist concluded that appellant would be a good candidate for rehabilitation; that E. had positive feelings for appellant, the only father she had ever known; that appellant would continue to support E. and his children if he were granted probation; and that he did not have a pedophilia disorder.

                        Mother had trusted appellant with E.'s care and appellant took advantage of that trust.  (See Cal. Rules of Court, rule 4.414(a)(9).)  Upon learning of E.'s complaints, mother told E. to stop sitting on his lap.  After appellant's arrest, mother told E. that if she kept saying " bad things," mother would be sent to jail.  Appellant has not met the burden of showing that the trial court abused its discretion in denying him probation.  (See People v. Goodson (1978) 80 Cal.App.3d 290, 295; People v. Kingston (1974) 44 Cal.App.3d 629, 637.)

                        The judgment is affirmed.

                        NOT TO BE PUBLISHED.

                                                                        COFFEE, J.

We concur:

                        GILBERT, P.J.

                        YEGAN, J.

Thomas R. Adams, Jr., Judge

Superior Court County of Santa Barbara

______________________________

                        Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

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            [1] All statutory references are to the Penal Code unless otherwise stated. 

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