P. v. Rios

Filed 3/6/07 P. v. Rios CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Andres Vazquez Rios molested his 10- and 12-year old nieces while they were visiting him during summer vacation. A jury convicted him of five counts of lewd and lascivious conduct with a child under 14 and returned true findings on allegations that he had committed offenses against more than one victim, making him eligible for One Strike sentences of 15 years to life on each count and ineligible for probation. (Pen. Code,  288, subd. (a) , 667.61, subds. (b), (c)(8) & (e)(5), 1203.066, subd. (a)(7).) The jury further determined that appellant had engaged in substantial sexual conduct with one of the victims, which also rendered him ineligible for probation. (Pen. Code,  1203.066, subd. (a)(8).) The court sentenced appellant to consecutive terms of 15 years to life on two of the counts (one for each victim) and ran the sentences on the remaining counts concurrently.

Appellant contends: (1) the judgment must be reversed because defense counsel was not permitted to fully examine one of the girls concerning the use of words that implied a knowledge of sexual matters beyond her years, and (2) the evidence was insufficient to support the finding of substantial sexual conduct. We affirm.

FACTS

In 2003, victims E. and J., then 10 and 12 years old, respectively, lived with their parents and siblings in Southern California. Appellant is their uncle (their fathers brother) and lived in Napa with his wife Leticia and two-year-old daughter Xiomara. In July 2003, appellant invited the girls to visit him and his family in Napa. The girls parents were reluctant, but appellant insisted and they agreed to the visit.

Appellants home had two bedrooms. The girls shared the guest bedroom and sometimes slept on a fold out couch in the living room. During most of their visit, appellant watched the girls and Xiomara during the day, while Leticia worked outside the home.

E. went into appellants bedroom one morning while J. and appellants daughter were lying on the bed. Appellant said he was going to give E. a massage and touched her breasts both over and under her clothes. (Count Four.)

On a different night, E. was sitting on the living room couch watching television with Xiomara while J. and Leticia were in other rooms of the house. Appellant touched E.s breasts and then lifted her clothing and started sucking on them. He pulled down her pants and put his fingers in down there, although E. did not know whether he penetrated her vagina. Appellant undid his pants and tried to make E. put her hands on his penis, but she would not hold it. He also tried to put his penis in her mouth, but she kept her lips shut and refused to do so. Xiomara began to cry and appellant took her into his bedroom. The next day, appellant told E. he would buy her clothes, but she should not tell her mother about it. (Count Five.)

Appellant also molested J. during the girls visit. One morning he woke her up and told her to care for Xiomara, who was in his bedroom. Appellant entered the room while J. was watching television and told her he was going to give her a massage. He touched her back and then put his hands inside her pajamas and underwear and between the cheeks of her buttocks. J. said she had to take a shower and left the room. (Count One.)

One morning at about 3:00 a.m., appellant approached J. as she was sleeping in the living room and touched her breasts. (Count Three.) Eventually he returned to his bedroom. On another occasion, appellant touched her back and buttocks as she was falling asleep in the living room. (Count Two.)

Neither of the girls disclosed the molestations to their parents when they returned home. Each confided in a friend at school, thinking the friend would keep the information secret, but J.s friend told a school counselor. The girls described the molestations when they were interviewed by the counselor and several law enforcement officials.

At trial, appellant called a number of family members as character witnesses. Other witnesses were teenagers who testified that appellant had never touched them in an inappropriate way, though he had had the opportunity to do so, and parents who testified that he had never been inappropriate with their young daughters. Appellant took the stand in his own defense and denied molesting his nieces. He did not know why they would say he had done so, but speculated that they might have been upset because they thought he wanted their father to move to Napa.

DISCUSSION

Limits on Cross-Examination

Appellant contends the trial court violated his right to present a defense when it limited cross-examination about words used by E. during a police interview that tended to show a knowledge of sexual matters beyond her years.[1] He claims this evidence was critical because the jury might have believed that a girl E.s age would only know about such sexual matters if she had been molested. We reject the claim.

During her direct testimony, E. stated that appellant had put his mouth on her kootch, referring to her vaginal area. On cross-examination, defense counsel asked whether she had used the words titties and pussy to describe her body parts during an interview with one of the police officers. E. responded that she had, and explained that she used those words when talking to her friends. Defense counsel attempted to ask her whether she talked to her friends about those body parts and the court sustained a relevancy objection by the prosecutor. E. testified that appellant never showed her any videos or magazines with sexual themes or spoke to her about sexual things.

Defense counsel later explained, I wanted to ask [E.] at the time a little bit more questions about the history behind some of the words that she uses. Particularly the word[s] pussy, titties, kootch. These are not necessarily words that you would expect somebody at that age, and she would have been ten at the time, to use. [] And Im not trying to show any conduct on her part, but I think its important the jury understand that . . . . [] . . . [] To show, to show that they had familiarity with the things that they are describing above and beyond what Mr. Rios might have done to them. Its my feeling that even in todays day and age its quite possible a member of the jury or some members might not believe that a ten year old would know about such things unless they actually happened. [] And by asking questions about the conversations with friends and the conversations . . . the sisters have together, Im trying to show that this was not brand new material with them . . . . The court responded that it was sustaining the prosecutors objection because the evidence was more prejudicial than probative under Evidence Code section 352.

The Sixth Amendment of the United States Constitution guarantees a criminal defendants right to present a defense and to confront the witnesses against him, but not every restriction on cross-examination amounts to a constitutional violation. (See Davis v. Alaska (1974) 415 U.S. 308, 318; People v. Frye (1998) 18 Cal.4th 894, 946.) Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Frye, supra, 18 Cal.4th at p. 946.) The Sixth Amendment is not violated unless the defendant can show that the proposed cross-examination would have produced a significantly different impression of [the witnesses] credibility [citation] . . . . (Ibid.)

The court did not abuse its discretion under Evidence Code section 352 or violate appellants right to confront E. as a witness. Using slang terms to refer to body parts is hardly unusual among children in todays environment. There was no danger the jury would attribute the use of such language to a molestation by appellant when E. specifically testified that appellant did not discuss sexual matters with her and that she used the words when speaking to her friends. This case is unlike Fowler v. Sacramento County Sheriffs Dept. (9th Cir. 2005) 421 F.3d 1027, cited by appellant, in which the defendant was accused of child molestation but was precluded at trial from cross-examining the minor about unsubstantiated allegations of similar conduct she had made against two different men. Such evidence obviously bore on the minors credibility and veracity because it tended to show she had made false allegations in the past (id. at p. 1039), whereas E.s vocabulary did not make it any more or less likely that she was telling the truth about appellants conduct.

Even if we were to accept appellants claim of federal constitutional error, we would find it harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Both J. and E. complained about similar conduct during a period when they were in appellants care. Appellant does not explain how E.s use of certain terms could have affected J.s credibility as a witness, and the manner in which the acts came to light (independent revelations by each girl to a different friend in the belief that no adults would be told) further supports their claims. It was clear from the interviews and from their testimony at trial that the girls did not enjoy discussing the subject and there was no plausible reason for them to have fabricated the accusations. Although appellant points out minor inconsistencies between the girls trial testimony and some of their statements during the investigation, these are the types of variations that one would expect from witnesses relating acts that had occurred almost two years earlier by the time of trial.

During closing argument, defense counsel made the point that children today are exposed to a great deal of relatively explicit matter through the media and other sources, that it is common for them to use words similar to those used by E., and that there was no evidence that E. had learned those words from appellant. Additional cross-examination on a subject of minor relevance would not have produced a significantly different picture of E.s credibility or changed the result in this case. We can say beyond a reasonable doubt that the verdict was unaffected by the courts restriction of cross-examination on the subject of E.s vocabulary.

Substantial Sexual Conduct

Appellant contends the evidence was insufficient to support the jurys finding that he engaged in substantial sexual conduct with E. He claims this finding requires a remand for resentencing because a court that did not believe substantial sexual conduct was involved might have imposed a single term of 15 years to life under the One Strike law rather than two consecutive terms of 15 years to life. (See Pen. Code,  667.61.) We disagree.

This argument proceeds from a faulty premise, because the record shows the court did not rely on the finding of substantial sexual conduct when it imposed consecutive terms. Rather, it noted that the acts underlying each of the five counts were separate and cited as aggravating circumstances appellants violation of a position of trust and the victims vulnerability in being placed in his care roughly 400 miles away from their home and parents.[2]

In any event, the jury rationally concluded that appellant had engaged in substantial sexual conduct, which was properly defined as penetration of the vagina or rectum of the victim or offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender. E. testified that appellant touched her lips with his penis, conduct sufficient to constitute oral copulation even though he did not penetrate her mouth. (People v. Grim (1992) 9 Cal.App.4th 1240, 1242-1243.)

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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[1] Although the caption for this argument in the opening brief suggests the court also limited defense counsels cross-examination of J., the text reveals that only the cross-examination of E. is at issue.

[2] The California Supreme Court is currently considering whether the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] affects its prior holding that the Sixth Amendment is not implicated when a judge exercises discretion to impose consecutive term sentences. (See People v. Black (2005) 35 Cal.4th 1238, 1244, judg. vacated and cause remanded sub nom. Black v. California (Feb. 20, 2007, No. 05-6793) ___ U.S. ___ [2007 LEXIS 6793]; id. at p. 1264 (conc. & dis. opn. of Kennard, J.).) In the interim, we remain bound by Blacks original holding on the issue of consecutive term sentences. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We note, however, that our decision is without prejudice to any relief to which appellant might be entitled should our high court ultimately conclude that the Cunningham rationale extends to such sentences.