P. v. Rodriguez
Filed 6/25/13 P. v. Rodriguez CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
FIDEL
RODRIGUEZ,
Defendant and Appellant.
A135640
(San Mateo
County
Super. Ct.
No. SC074543A)
In December 2011,
appellant was convicted by a jury of committing a lewd and lascivious act upon
a child under the age of 14, Jane Doe, then eight-years old. The trial court suspended imposition of
sentence and placed appellant on three years probation. Claiming that the trial court erred in
admitting evidence from a witness concerning appellant’s wife’s statements to
that witness, appellant asks that his conviction be set aside. We disagree with his contentions and hence
affirm his conviction.
On
November 7, 2011, an
information was filed charging appellant with violating Penal Code section 288,
subdivision (a), committing a lewd and lascivious act upon a child under the
age of 14. Appellant was tried before a San
Mateo jury on December 14 and 15, 2011. The following is a summary of the evidence
presented to that jury.
In
2011, appellant and his wife shared a house in San Bruno,
County, with several other people, including a woman named R. C. (hereafter
R.) and her three children. Those three
children were T., age 16, Jonathan, age 10, and the alleged victim in the case,
Jane Doe, age 8. Jane had clear
developmental problems, and was described by her mother as being “delayed†in
her development, using medication on a daily basis, and having epileptic
seizures. The mother also described Jane
as usually functioning between the ages of two and four years. T. and Jonathan watched over Jane when their
mother, R., was working (at a nearby Laundromat).
On
the afternoon of July 26, 2011, R. was working and her three children were at
their home. The oldest, T., was watching
over the younger two, Jonathan and Jane, while all three were in their family’s
bedroom. Jane then left that room and
went into the living room of the house.
T. asked her younger brother, Jonathan, to “go get her,†and Jonathan
went into the living room, also then occupied by appellant, and he and Jane
began watching some birds kept in birdcages there.
Appellant,
then 68 years old, was sitting in a wicker chair in the living room and Jane
“was standing up . . . [n]ext to him.†Appellant asked Jonathan to cover a
birdcage—apparently belonging to him—about 10 or 15 feet away from where appellant
was sitting. Jonathan did so, but then
turned around to see appellant pull Jane towards him and put “his hand in my
sister’s pants†for about five seconds.
Jane told appellant to “stop,†appellant saw Jonathan watching him, and
he then pushed Jane away. Without saying
anything, appellant then “just walked out of the room after that.â€
Jonathan
and Jane then returned to the bedroom they shared; Jonathan told T. (again, the
oldest of the three) that “the guy†had touched Jane. T. asked her sister where she had been
touched, and Jane “gestured down in her private part and . . .
just said here.†T. then called their
mother, R., told her what had happened, and R. came home five minutes
later. Jonathan told her what had
happened, and she was then “like in shock.â€
R. also noticed that Jane seemed “[v]ery serious. Very different.â€
R.
then took Jonathan into her bedroom and asked him what had happened; he
responded that appellant had “placed his hand inside [Jane’s] underwear†and
“[i]nside the panties.â€
A
little bit later, after R. had gone back to her workplace and arranged to
return home, she asked Jane to tell her what had happened. Jane then “placed one hand over her face and
lowered her face down,†a very unusual action for Jane when she was with her
mother. When R. pulled down Jane’s
panties to check her vagina, Jane said “ouch,†a word she normally used to
indicate pain. Jonathan then repeated to
his mother what he had seen appellant do in the living room; R. called the
police and then went to see appellant’s wife, who was in the kitchen at the
time.
After
the wife had heard from R. what the latter had learned from her children, the
wife brought appellant out from their bedroom into the shared living room. On direct examination, R. testified that,
when he came into the living room, appellant appeared “nervous†and his hands
were “shaking.†After he came into the
room, R. continued, she asked Jane “what did this man do to you,†and her
daughter responded by placing one hand “over her face†and the other “in
between her legs.â€
On
cross-examination by defense counsel,
R. testified that appellant “told me that boy [Jonathan] is lying.†Defense counsel then asked her if appellant
had said anything specific “about lying . . . or was he just
saying that in general?†R.
responded: “When his wife brought him to
the room she was . . . standing right next to him. And she told him, ‘I warned you that I didn’t
want this type of problems’ †and “ ‘I warned you to respect them
because she is a mother, a single mother with children and she needs to be
respected.’ And that is when he said,
‘He’s lying. The boy is lying.’ â€
At
this point, appellant, his wife, R., and both Jane and Jonathan were in the
living room of their shared house; Jane was sitting between her mother’s
legs. R. asked Jane what appellant had
done to her, and Jane put one of her hands in front of her genital area and the
other in front of her face, and in doing so was “very serious†in her demeanor,
as was Jonathan who was also present. Appellant
claimed that “he was not the one that did it.
But his voice was shaking†and he “could barely hold onto his
cane.â€
Shortly
thereafter, the police arrived. One of
the several officers who responded, Officer Mike Blundell, interviewed
Jonathan; the latter told him that appellant had touched his sister, Jane Doe,
“around her groin area.â€
name="_ftnref2" title="">[2] This statement led the officer to interview
Jonathan more fully and privately; he found Jonathan to be more “intelligent
than, and articulate in regards to other kids that I have questioned at that
age and/or spoken with.†In his
continued, 20-minute or so interview with Jonathan, the latter reiterated that,
when he had heard his sister say “stop,†he turned around and “saw the
defendant’s right hand on the interior portion of his sister’s sweat type
pants. . . . [¶] . . . in and around her groin
area.†Blundell scanned and photographed
the room where the incident took place, and concluded that Jonathan could have
“a direct view to what the defendant was doing to his sister.â€
Later,
another San Bruno police officer, Detective Heidi Schindel, interviewed
Jonathan. He told her essentially the
same thing, i.e., that after he heard Jane say “stop,†he turned around and
“saw that the defendant had his hand underneath her pants touching her private
area,†and that he was certain that appellant’s hand “was underneath the
pants.†Jonathan also reiterated to
Detective Schindel that, when appellant noticed that Jonathan was watching him,
“he immediately kind of moved the sister and left the room.â€
Earlier
in its case, the prosecution had introduced testimony from a San Mateo County
Sheriff’s Department criminologist that a person who touches another person’s
hand “for several seconds†might or might not leave DNA on the latter surface
depending on a variety of factors, including the amount of DNA present on each
hand, which person is “a better shedder,†and whether the touched person had
washed his or her hands after the touching.
After the conclusion of the prosecution’s case, and before the beginning
of the defense case, the parties stipulated that none of Jane’s DNA was found
on appellant’s hands and that a medical examination of Jane revealed no
indication of trauma or penetration in her genital area.
Appellant,
as noted then age 68, testified in his own defense.
He testified that he and his wife
had had six children, all of them daughters.
At the time of the event in question, he and his wife were living in a
house owned by one of those daughters and her husband. Other rooms in the house—as noted above—were
rented out to others, although all the tenants shared the living room and
kitchen. R. and her three children had
lived in the house for about two months.
On
the day in question, July 26, 2011, appellant testified that he had come into
the sitting room and was apparently both “watching the birds and covering them
up†when the two children, Jonathan and Jane, entered the room moments
later. Jane was, per appellant, wearing
a T-shirt and sweat pants. The two children
were, according to him, “looking at the birds†and, in the process, Jane had
removed the cover from one of the bird cages.
Appellant asked Jonathan to replace it and, as he did so, Jane was
standing “close by†to him. Appellant
testified that he was concerned Jane might step on his sore foot. He thus got up and left the room and, in so
doing, placed his hands “along her waist†on the outside of her pants,
whereupon Jane uttered the word “stop.â€
Although appellant admitted
physically moving Jane, he denied touching her at all below the waist. Before the police arrived, appellant had said
the same thing to Jane’s mother, R., i.e., telling her “nothing happened.â€
About
five minutes after he had gone back into his room, the police arrived. Early the following morning, he was tested
for DNA; he claimed he had not washed his hands in the intervening period.
Two
of appellant’s daughters testified in appellant’s defense; both stated that
they had never known appellant to act in a sexually inappropriate manner with
either them or their children.
As
noted above, R. testified—during cross-examination by defense counsel—that, in
the course of the events of July 26, appellant’s wife made, in her presence,
two statements to him reminding him of her earlier alleged “warnings†to him
about “this type of problems.†Defense
counsel objected on the basis that the alleged statements of the wife were
“irrelevant†and “hearsay†and asked that they be stricken. The trial court denied the request,
stating: “The wife’s statements should
be considered by the jury not for the truth of what they are, but just to set
up the answer of the defendant. It’s
kind of a legal distinction. But you should
only consider the wife’s comments as they put the defendant’s statement in
context, not for the statement the wife may or may not have said herself.â€
Nothing
further was said on this subject, and defense counsel then proceeded with
further cross-examination of R. This
specific testimony of R. was not mentioned in either closing argument to the
jury.
However, a short
time after the jury began its deliberations on December 16, 2011, it delivered
several hand-written questions to the court.
They read: “We need clarification
of the mother’s testimony about what the defendant’s wife said to the
defendant. The mother was talking with
the defendant and his wife before the police arrived. The mother said the wife spoke to her
husband, the defendant. An attorney
objected, the judge gave the jury instructions.
1. What are the judge’s
instructions? 2. Is the wife’s statements as repeated by the
mother admissible? 3. If admissible, what did she say?â€
The
trial court responded by informing the jury, in writing: “The Court reporter will read the exchange of
testimony and the Court’s remarks at that time.†It also advised the jury to re-read
“instruction 303†(i.e., CALCRIM No.
303), an instruction regarding the limited purpose of certain evidence.
As
instructed, the court reporter then re-read to the jury the relevant portion of
R.’s testimony, and the immediately-following admonishment the court gave the
jury with respect to this testimony.
Shortly thereafter, the jury returned its verdict finding appellant
guilty of the single charged offense.
After
that verdict had been entered, on April 9, 2012, new defense counsel filed a
motion for a new trial. In it, he
argued—among other things
name="_ftnref4" title="">[4]—that
the trial court erred in not striking the answer given by R. The trial court denied that motion on May 9,
2012, stating: “The Court disagrees
there was an error of law in admitting hearsay statements attributable to the
Defendant’s wife. The statements were
admitted for the non-hearsay purpose of giving meaning to the subsequent
comment by the defendant and the jury was so instructed.â€
On May 25, 2012, the trial court suspended
imposition of sentence and placed appellant on probation for three years.
On
May 30, 2012, appellant filed a timely notice
of appeal.
In his briefs to
us, appellant asserts that the trial court abused its discretion and violated
his constitutional rights by admitting the testimony of R. regarding
appellant’s wife’s statements to him on the day in question. He contends that the wife’s statements were
inadmissible because they were irrelevant and consisted of hearsay. He continues that, although the trial court
was correct in finding “that appellant’s wife’s statements were inadmissible
hearsay if offered for the truth of the matter asserted, the trial court erred
in permitting the statements to be introduced for the nonhearsay purpose of
‘set[ting] up the answer of the defendant.’ †Because of the “prejudicial impact of the
evidence . . . no limiting instruction could have cured the
prejudice†caused by their admission, thus violating appellant’s constitutional
rights under the Fifth, Sixth, and Fourteenth Amendments to the federal
Constitution. He further contends that
no trial court error can be deemed harmless because “the record clearly indicates
the jury was specifically focused on the statements and was considering them
during their deliberations . . . .â€
We
disagree. For a variety of reasons, we
find no error in the trial court’s refusal to strike the one specific answer of
witness R. Cruz adduced on cross-examination, particularly in light of the
specific instruction it gave the jury immediately after defense counsel’s
objection and motion to strike, and then repeated to the jury during its
deliberations.
First
of all, an evidentiary ruling of the sort at issue here is clearly reviewed
under an abuse of discretion standard of review. Thus, both the issues of relevance and the
treatment of hearsay testimony are governed by that standard. (See, e.g., People v. Riccardi (2012) 54 Cal.4th 758, 815; People v. Jablonski (2006) 37 Cal.4th 774, 821; People v. Turner (1994) 8 Cal.4th 137, 189 (Turner) overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5;
264.) “[A] trial court does not abuse
its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.â€
(People v. Carmony (2004) 33
Cal.4th 367, 377.)
Second,
appellant has clearly forfeited any grounds other than hearsay and relevance to
justify the exclusion of the testimony of R. regarding the answer given by
appellant’s wife. At trial, appellant’s
counsel—the one who framed the question to R.—moved to strike her answer only on
the grounds that “it goes beyond the scope of the question, it’s irrelevant,
it’s hearsay.†Nothing was mentioned
regarding the issues now raised in appellant’s briefs to us regarding Evidence
Code section 352 or any of the several constitutional issues argued
therein. Indeed, even in the post-trial
motion—filed in the trial court by different defense counsel—no constitutional
issues were raised or even mentioned.
Under well-established law, appellant may not now contend, as he does in
his briefs to us, that the trial court violated any of his constitutional
rights in its denial of his motion to strike R.’s answer to his counsel’s
question to her.
In
People v. Partida (2005) 37 Cal.4th
428 (Partida), our Supreme Court
explained: “The objection requirement is
necessary in criminal cases because a ‘contrary rule would deprive the People
of the opportunity to cure the defect at trial and would “permit the defendant
to gamble on an acquittal at his trial secure in the knowledge that a
conviction would be reversed on appeal.†’
[Citation.] ‘The reason for the
requirement is manifest: a specifically grounded objection to a defined body of
evidence serves to prevent error. It
allows the trial judge to consider excluding the evidence or limiting its admission
to avoid possible prejudice. It also allows the proponent of the evidence to
lay additional foundation, modify the offer of proof, or take other steps
designed to minimize the prospect of reversal.’ [Citation.] [¶] Thus, the requirement of a specific
objection serves important purposes. . . . [¶] In this
case, defendant objected at trial that the gang evidence should be excluded
under Evidence Code section 352. The objection alerted the court to the nature
of the anticipated evidence and the basis on which its exclusion was sought. It
permitted the court to make an informed ruling and gave the People the
opportunity to establish the evidence’s admissibility. On appeal, defendant may argue that the court
erred in its ruling. But he may not
argue that the court should have excluded the evidence for a reason different
from his trial objection. If he had
believed at trial, for example, that the trial court should engage in some sort
of due process analysis that was different from the Evidence Code section 352
analysis, he could have, and should have, made this clear as part of his trial
objection. He did not do so.
Accordingly, he may not argue on appeal that due process required exclusion of
the evidence for reasons other than those articulated in his Evidence Code
section 352 argument.†(
434-435.)
Evidence
Code section 353, subdivision (a)—a statute not cited or discussed in either of
appellants’ briefs to us—makes this point quite clear. It provides:
“A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of
evidence unless: (a) There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the
objection or motion . . . .†(Evid. Code, § 353, subd. (a), emphasis supplied; see,
applying this statute, People v. Abel (2012)
53 Cal.4th 891, 924, and People v.
Kennedy (2005) 36 Cal.4th 595, 612, overruled in part on another ground in
405, 459.)
Even
if there was no forfeiture, appellant’s argument that the admission of that
particular testimony of R. was prejudicial error fails. In his briefs to us, appellant argues that if
there was any such forfeiture (1) his trial counsel was ineffective and (2) his
federal constitutional rights were violated by the trial court’s refusal to
strike the answer of R. regarding appellant’s wife’s statement to appellant
when she came into the sitting room. We
disagree with both contentions.
Regarding
the alleged ineffective assistance of counsel, our Supreme Court has made clear
that a significant burden exists to sustain such a contention on appeal. As that court held in People v. Farnam (2002) 28 Cal.4th 107, 201: “To prevail on such contentions, defendant
must show that counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms, and that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result would have been different.†This
holding is, of course, consistent with that of the United States Supreme Court
which, in the leading case of Strickland
v. Washington (1984) 466 U.S. 668, made clear that “counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment†(
“defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.†(Id. at p. 694; see also People
v. Castaneda (2011) 51 Cal.4th 1292, 1335.)
Under
these standards, there was no ineffective assistance of trial counsel in this
case regarding the testimony—again, testimony adduced on cross-examination—of
R. regarding appellant’s wife’s statements to him in the jointly-shared living
room. The hearsay and relevance
objections asserted by that counsel were clearly the most apparent and obvious
ones for him to make under the circumstances.
There is no authority that we are aware of, and indeed none is cited in
appellant’s briefs to us, that holds or even suggests that defense counsel is
required to assert “all permissible grounds†of objections to evidence which is
adduced. Thus, there was no reasonable
likelihood that the trial court would have granted defense counsel’s motion to
strike the objected-to testimony of R. even if further specific objections regarding
appellant’s wife’s statements to him, i.e., objections based on constitutional
grounds, had been articulated.
Further,
it is not at all likely that the jury verdict would have been different even if
any such motion to strike was granted.
As noted above, the jury had before it both the specific testimony of
Jane’s brother Jonathan as to what he had seen and T.’s testimony about what
Jane had both said and demonstrated to her.
As noted above, it also had heard the prosecutor’s argument that the
most important testimony it had heard was that of Jonathan. And, finally, it had the court’s
twice-repeated instruction that it should not consider the wife’s alleged
statements “for the truth of what they are, but just to set up the answer of
the defendant.â€
Finally regarding the
in his briefs to us, even if such arguments were not forfeited at trial, they
cannot and do not change the outcome here.
As our Supreme Court has made clear, indeed several times: “Application
of the ordinary rules of evidence generally does not impermissibly infringe on
a capital defendant’s constitutional rights.â€
(People v. Kraft (2000) 23
Cal.4th 978, 1035; People v. Prince (2007)
40 Cal.4th 1179, 1229; see also People v.
Riggs (2008) 44 Cal.4th 248, 304 [“To the extent defendant’s claim is a
constitutional gloss on his trial objection and therefore not forfeited, it is
without merit because there was no abuse of discretion.â€].)
Most
importantly regarding the claimed error of the trial court, as noted above it
wife’s statements should be considered by the jury not for the truth of what
they are, but just to set up the answer of the defendant. It’s kind of a legal distinction. But you should only consider the wife’s
comments as they put the defendant’s statement in context, not for the
statement the wife may or may not have said herself.â€
The
law is very clear that “[w]e presume
that the jury followed the court’s instructions.†(Turner,
supra, 8 Cal.4th at p. 190; see also cases cited therein and, additionally,
People v. Richardson (2008) 43
Cal.4th 959, 1004; People v. Davis (2005)
36 Cal.4th 510, 537.) Very recently, our
Supreme Court reaffirmed this rule; it stated: “We reject as entirely
speculative defendant’s assertion that these limiting instructions were
inadequate. ‘Any prejudice that the
challenged information may have threatened must be deemed to have been
prevented by the court’s limiting instruction to the jury. We presume that jurors comprehend and accept
the court’s directions. [Citation.] We
can, of course, do nothing else. The
crucial assumption underlying our constitutional system of trial by jury is
that jurors generally understand and faithfully follow instructions.’ [Citation.]â€
(People v. Homick (2012) 55
Cal.4th 816, 866-867.) These repeated
and clear holdings of our Supreme Court thus undermine appellant’s argument
that “no admonition or instruction could undo the prejudice associated with the
statements.â€
Consistent
with this principle, we must and do conclude that the jury both understood and
followed the trial court’s twice-repeated instruction that it
appellant’s wife’s statements in her presence for the truth of any matter
asserted therein.
Finally,
there is one more reason there was no prejudicial error in the court’s ruling
regarding the challenged testimony of R.
It is because the testimony of R. on cross-examination was the direct
result of defense counsel’s probing deeper into the events of July 26 than had
the prosecutor in her direct examination of R.
Further, inasmuch as R. was the first witness for the prosecution, the
jury had not yet heard from Jonathan about what he had seen and the reactions
of, first, Jane Doe, to the alleged touching and, second, the “lying†response
of appellant to Jonathan’s version of the events of that day. Thus, on direct examination, R. simply
testified that (1) Jane often used the term “ouch†whenever “she’s in pain for
whatever reason†and (2) appellant responded to her questions to him as to what
had happened by saying—in a “shaking†voice “that he was not the one that did
it.â€
On
cross-examination, defense counsel
opted to pursue both those points, and cross-examined R. first with regard to
when and under what circumstances Jane would say “ouch†(3 RT 57-59) and then
regarding what appellant had said about the incident. In the course of the latter
cross-examination, defense counsel asked R.: “When you were in the same room
with Mr. Rodriguez I think you said that he told you that your son was
mistaken; am I right about that?â€
R.
answered: “Lies. He told me that boy is
lying.â€
Defense
counsel followed up on this answer by asking: “Did Mr. Rodriguez explain
further his statement that he believed your son was lying?†R. responded:
“No. He just said he’s lying.†There then followed the question from defense
counsel and the answer from R., quoted above, that forms the basis for this
appeal, i.e., concerning the statements of appellant’s wife in front of her and
appellant.
What
all this strongly suggests is that the question posed to R. on
cross-examination by defense counsel was intended to put in context what
the accusations against him. Put another
way, R.’s testimony concerning the statements of appellant’s wife explained
both appellant’s understanding of what he had in fact done and his accusations that the one eye-witness to his acts, i.e.,
Jonathan, “was lying.â€
As
our Supreme Court explained in Turner,
providing context to a defendant’s statements is a permissible purpose
validating the admission of testimony which would otherwise be inadmissible as
hearsay. The Turner court explained: “An
out-of-court statement is properly admitted if a non-hearsay purpose for
admitting the statement is identified, and the non-hearsay purpose is relevant
to an issue in dispute.†(
189.) As here, the statements at issue
in Turner “gave context and meaning
to defendant’s admissions.†(Id. at
p. 190.) Further, and as noted above,
here as in Turner “the jury was
repeatedly instructed that they were not to consider [the witness’s] statements
for the truth of the matter asserted, but merely to give context to defendant’s
statements. We presume that the jury
followed the court’s instructions.†(
For this reason, also, the trial court did not err in declining to
strike R.’s testimony concerning appellant’s wife statements to him, statements
made in R.’s presence.
For
all of these reasons, we reject appellant’s argument that the trial court’s
denial of its motion to strike the testimony of R. regarding appellant’s wife’s
statements constituted prejudicial error.
The
judgment of conviction is affirmed.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
discussed further below, defense objected to this testimony and asked the court
to strike it, which the court declined to do although specifically stating that
the “statements should be considered by the jury not for the truth of what they
are but just to set up the answer of the defendant.â€
of the evidence summarized hereafter is mentioned in the Attorney-General’s
brief to us. We find this rather
curious, because much of it is actually helpful to their position in this
appeal.
